Lawfare Daily: The Legality of OPM's "Deferred Resignations”
Feb 5, 2025
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Nick Bednar, an associate professor of law at the University of Minnesota, brings his expertise in national security law to the forefront. He delves into the controversial 'deferred resignation program' proposed by the Office of Personnel Management, raising crucial questions about employee rights and potential legal recourse. Bednar explains the confusion federal employees are experiencing due to unclear communications and outlines the legal complexities that could impact their futures. He reflects on the value of public service and the challenges civil servants face in navigating uncertain times.
The OPM's deferred resignation program raises serious legal concerns about its validity and potential impact on employees' rights and compensation.
Federal employees are confronted with uncertainty regarding their financial security and job stability due to the program's lack of clarity and funding issues.
Deep dives
Ambiguity of the Deferred Resignation Program
The recent initiative by the Office of Personnel Management (OPM) to offer federal employees a deferred resignation program raises significant legal and procedural questions. Many employees received an email that lacked clear legal citations, creating confusion regarding the offer's validity. This program, which supposedly allows employees to resign and remain on administrative leave until September while receiving pay, is unprecedented and not in line with traditional civil service protocols. The lack of standard personnel forms and unclear terms within the email only adds to the growing skepticism among federal employees about the authenticity and legality of the offer.
Potential Legal Issues Involved
Several legal concerns stem from the deferred resignation program, particularly regarding the Anti-Deficiency Act, which prohibits federal agencies from obligating funds not appropriated by Congress. Employees are facing a dilemma, as the program promises payments beyond the current funding resolution, which expires soon, leaving significant uncertainty about financial backing. Additionally, there are implications for employees who may inadvertently sign away their legal rights, impacting their ability to seek recourse if the program turns out to be unlawful. The inconsistencies in the contract's terms, which have changed frequently, complicate matters further, leaving many uncertain about their positions and legal standing.
Impact of External Influences
The involvement of high-profile figures, such as Elon Musk, further complicates the federal workforce's concerns regarding this program. Reports indicate that Musk's connections to this initiative may influence the administration's approach to federal employment in a manner similar to his management of private companies, which raises alarm about the treatment of civil service workers. Employees worry that the implementation of this program reflects a broader agenda to reduce federal staffing without adhering to existing regulations and protections. Such sentiments express a deep distrust among federal workers about the motivations behind this initiative, especially considering that many are dedicated public servants committed to their roles.
Future Considerations for Federal Employees
As federal employees navigate this challenging landscape, they are faced with important decisions influencing their careers. Many are weighing the benefits of accepting the deferred resignation offer against the long-term implications and potential legal ramifications. Despite receiving administrative leave and pay until September, there is a significant risk that Congress may not appropriately fund these positions if too many employees opt into the program. Thus, participants may find themselves in precarious financial and professional situations if funding does not materialize, prompting many to consider their options carefully before agreeing to the terms presented.
On Jan. 28, the Office of Personnel Management (OPM) sent out an email offering a “deferred resignation program” to over 2 million federal employees, encouraging them to resign effective Sept. 30. The offer is only open until Feb. 6—and in the intervening days since OPM announced the program, federal employees have received a blizzard of followup emails offering confusing and rapidly changing information.
Writing in Lawfare, Nick Bednar has examined the OPM offer and raised questions about whether federal employees who take this option will be able to seek legal recourse if their contract is not paid out. On the podcast, Bednar, an associate professor of law at the University of Minnesota, joined Lawfare Senior Editor Quinta Jurecic to walk through the many legal issues raised by the program and how federal employees are handling this period of uncertainty.
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