what’s at stake
A recent federal court ruling allowed the Trump administration to implement a plan to reduce the size of the federal government by allowing employees to resign but remain on the payroll through September.
But even as the decision earlier this month by a Bill Clinton-appointed judge paved the way for about 75,000 federal workers to agree to the program, it did little to settle legal questions about the deferred resignations offer. The judge decided that unions suing over the policy lacked standing but didn’t rule on the legality of the program.
Those circumstances raise the prospect of more litigation concerning the program also known as “Fork in the Road” — the same title Elon Musk gave a severance offer he delivered to Twitter employees following his purchase of that company.
The US Office of Personnel Management, which declined an interview request for this story, contended that the ruling did in fact settle any doubt about the legality of the program.
“The Deferred Resignation Program was both legal and a valuable option for federal employees,” OPM spokesperson McLaurine Pinover said in a statement. “This program was carefully designed, thoroughly vetted, and provides generous benefits so federal workers can plan for their futures.”
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who’s making the case
Nick Bednar, associate law professor at the University of Minnesota, said in an interview with Semafor that the deferred resignation program is unlawful:
“This program as currently conceived likely violates a number of statutory provisions. The first thing to note is that there is a mechanism in federal law for agencies to offer separation incentives to employees. That program caps at $25,000, and it doesn’t look like that is what the Office of Personnel Management or other federal agencies are offering their employees. So to the extent there is an existing program that would allow something like this, it’s not the program they’re using.”
“The federal government and most agencies are operating under a continuing resolution until March 14. And federal agencies cannot obligate any funds without additional authorization from Congress under the Antideficiency Act. So what that means is, they’re promising a bunch of money, continued pay and salary to employees, but they don’t have the legal authority to make that promise.”
“They are currently promising that if you accept the deferred resignation program you don’t have to show up to work, you will be placed on administrative leave. The Administrative Leave Act of 2016 was enacted to respond to concerns that agencies were using administrative leave in a wasteful way and one of the provisions of that act limits administrative leave to 10 days per calendar year.”
Charles Ezell, Acting Director of the Office of Personnel Management, and Andrew Kloster, general counsel of the Office of Personnel Management, argued in a memo to agency heads that the program is legal and doesn’t need formal congressional approval:
“The program does not promise employees additional compensation that might require special congressional appropriations. An employee who has chosen to participate in the deferred resignation program will not be placed at a disadvantage compared to other employees if congressional appropriations lapse.
“In the event of a partial or complete government shutdown, payments to all affected employees (regardless of whether they accepted the deferred resignation offer) would be temporarily paused. Upon passage of another appropriations bill, however, affected employees would be eligible for retroactive pay ‘at the earliest date possible’ under the Government Employee Fair Treatment Act of 2019.
“The decision to grant administrative leave, and for how long, lies largely within the agency’s discretion. A statute governing administrative leave states that, ‘[d]uring any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days.’ But binding regulations promulgated by OPM have interpreted that limitation to apply only to a ‘management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation.’
“The ten-day rule therefore poses no bar to the extended administrative leave contemplated by the deferred resignation program.”
Notable
- On Thursday, an Obama-appointed federal judge ruled against unions’ bid to stop President Trump’s firing of a wide swath of federal employees, ruling that the groups need to file their suit with a panel that hears labor disputes.
- Some federal employees were mistakenly fired after accepting the deferred resignation offer, The Washington Post reported.