Seriously, I try to keep my political preferences and my law practice separate from one another. Sometimes, though, events conspire to make that VERY hard to do.
Long story sort: if you are a Federal employee and you think you’ve been offered six months of paid administrative leave in exchange for a deferred resignation, please look again and keep your eye on the news, because reality may not conform to that initial impression and things may change very quickly here.
On 29 January 2025, the U.S. Office of Personnel Management sent out a blast e-mail to almost every federal employee that has been understood by some to be an early retirement offer. That’s not what it is. If you’re a Federal employee confused by this e-mail and what your options are, READ THE E-MAIL CAREFULLY and do not act rashly.
LOTS of people have been very confused by this memorandum and what it offers and whether it’s something they want to do. It’s not clear to me that the offer it makes is compatible with the civil service laws and regulations. Frankly, I’m dubious.
What it seems to be on its face is an offer to Federal employees who do not wish to comply with a return-to-the-office order, which includes a voluntary resignation. There is an implied suggestion, but not a guarantee, that an employee who offers to resign as of a date in September will be put on administrative leave and not required to actually work but will be paid for a period of time. So if you agree to turn in a resignation, that will be effective, but you might be required to go back to the office anyway, and might be required to continue working anyway. Doesn’t sound like a great deal to me just on an economic level.
Nor is there any sort of guarantee that your resignation under this offer would be accepted at all. If it even can be. I can find very few resources suggesting that this might be a good offer for anyone, except maybe for people who were thinking about resigning anyway for reasons independent of the offer.
I’m also aware that at least some Federal employees were always working from home, or at least non-office locations, even before the pandemic. Perhaps the most interesting people I met doing that were “spaceship inspectors,” whose exact job title I now am unable to remember, whose jobs involved review and enforcement of federal regulations on the emerging technologies of private vehicles meant to enter space. Those people were working from home while employed by the Federal government (I believe by the FAA) as far back as ten years ago, well before the pandemic of 2020 made us all take a look at and in many cases start practicing doing professional work from home. It’s really unclear to me what this “offer” would do to such people, who never had offices to which they might otherwise return.
As a tangent: I continue to believe, as I did in 2022, that employers issuing return-to-the-office orders should have a good reason in mind for doing that, and should not just issue those instructions for their own sake. It’s not so much a question of the employer’s right to issue such instructions as it is something that has enormous potential to deflate morale. Deflated morale invites all manner of spinoff problems, including increased likelihood of litigation. But that’s a different question than the one I want to write about today.
But even if you took it at face value I don’t think it’s consistent with civil service regulations which create a particular procedure for resigning from your position, and other orders regarding when you or don’t have to comply with a return-to-the-office order. For instance, in most cases, Federal employees can only be put on administrative leave for ten days. 5 U.S.C. § 6329a; see also 5. C.F.R. ¶ 630.1404 (Biden Administration interpretation that 10-day period applies to investigatory periods of time; current status under new Trump Administration unclear). But there are exceptions to this rule that can be satisfied with a memo that sets forth a valid justification for a longer administrative leave period.
As another consideration, the fact that this seems to have been done by Executive Order (and there seems to be no direct Executive Order authorizing this, even among the flurry of Executive Orders issued after the 20 January 2025 transition to the Trump Administration), rather than with the passage of a change to the law or a monetary appropriation by Congress, makes it very questionable indeed in my mind that the President, acting on his own authority, can pay Federal employees not to work. Think about how carefully the Federal government regulates your use of a government computer, and then ask yourself if it could really be true that you’ll be offered six months of paid, non-working administrative leave.
As with so many things in life, if it seems too good to be true, you really need to look carefully at it.
Federal employees, like every other employee, have rights under the Americans with Disabilities Act to have reasonable accommodations made to account for any disabilities they might have. In some cases, work-from-home arrangements might count as reasonable accommodations. (Obviously, not every disability accommodation request will reach that result and your case may well be very different from your colleague’s case or some other case you might have heard about. Disability cases are VERY individualized.) It’s not clear to me what this “offer” does with regards to people who have those accommodations in effect or who might need them.
Nor is there any sort of guarantee that your resignation under this offer would be accepted at all. If it even can be.
Finally, as with so many other things happening around this change in Administration, there are court challenges to it, and those court challenges may result in any number of things — the Administration withdrawing the offer and trying something else to realize its political objectives; an order of the Court that this action somehow violated the law and is unenforceable; and who knows what else.
Further, this appears to originate from a group that as of yet does not appear to be an official government entity at all, called the “Department of Governmental Efficiency,” which is not a “Department” of the Federal government at all (that would be a Cabinet-level entity on par with the Department of Agriculture or the Department of Defense and can only be created by an Act of Congress, which has not occurred) but does seem to be a political advisory board to President Trump (and he is allowed to take political advice from whoever he wants). A prominent member of this group is the famous businessman Elon Musk, who among other things bought the company then known as Twitter and circulated to its employees a general severance offer also titled “A Fork in the Road.” The nature of the official relationship between Musk, DOGE, and OPM is not clear, and the very existence of DOGE as a governmental entity with influence over policymaking is the subject of at least two pending lawsuits that I’m aware of.
Now, if you did turn in a resignation under this offer for whatever reason, and think that was a mistake or ill-advised, you should be able to retract that resignation before its effective date. I would generally suggest that a Federal employee who is classified in the civil service to be very reluctant to withdraw from employment unless they had some other, personal reason for doing so whether or not this e-mail had ever been circulated.
If you are in a union, that should be your first resource. Hopefully, your union has by now circulated advice about this “fork in the road” offer and can offer some guidance about what options you might have if you are considering withdrawing from Federal service for whatever reason. Not all Federal employees are unionized, though; so that might not be a resource you can turn to. (And if you are skeptical about unions, as some people who inquire with me are, I’d gently suggest to you that offering this sort of guidance is one of the things that unions are good for, despite whatever other flaws you might identify with them.)
The new Trump Administration has announced political goals that seem to suggest an effort to reduce the overall Federal workforce. That’s politics. Federal employees, particularly those in the ranks of the civil service, have vested interests in their jobs. That’s law. Take care to know your legal rights. Don’t be afraid to insist upon them. There are many resources out there to help you. For instance, the Trump Administration has recently issued an executive order purporting to re-classify tens of thousands of Federal employees as not within the civil service, and therefore subject to termination at the pleasure of the President. But there are at least three other lawsuits pending challenging this executive order pending now, two brought by different unions and one by a mutual advocacy and support group. This is all brand-new and it could take quite some time before the law gets sorted out.
And there are a variety of other changes to the way Federal employment is being handled, particularly regarding the use of Diversity, Equity, and Inclusion with respect to personnel issues. This is quite political at the moment, and it may be some time before the public debate on these issues dies down. I don’t think the abrupt and dramatic changes taking place as a downstream result of the recent political change is being handled very smoothly, and I’m reserving judgment about what’s going on to see what kinds of legal issues might arise until I can hear some first-hand stories.
Elections matter. A lot. There has been a significant political change, and the new Trump Administration is going about doing things in ways that are very different than the recently-departed Biden Administration. A President (and his lieutenants, who as we all know do a lot of this stuff on his behalf) has a lot of discretion about how to administer the government. But that discretion is not unlimited. When a President is willing to push the envelope of what is or isn’t within his legal powers past the point where the law offers clear answers — by definition, in that situation, the ultimate answers are not going to be clear, and it may take quite some time before those answers become clear. That’s the place we’re in right now. For people who crave certainty, it’s an uncomfortable place to be.
In the meantime, one of the reasons people seek Federal employment is they want stability and predictability in their professional lives. This is a great time to refresh yourself on what legal rights you have as a Federal employee, address your relationship with your union if that’s possible, and pay attention to the news with intelligence and political dispassion.