This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq
With the deadline approaching today (February 6, 2025) for federal employees considering whether to take up the administration’s offer to resign and get paid through the end of September (“Fork in the Road” email), many still have questions.
There have been multiple changes to the offer and proposed settlement terms over the last few days so employees accepting the deferred resignation are facing risks as to whether or not the program will work as planned.
Many federal employees offered the deferred resignation opportunity could benefit from it, but one of the problems is that the program has been rushed out too quickly. With the speed that the program was put in place, most federal employees have been confused about how it applies, whether they will have to do any work during the resignation period and whether it is binding. Most agency administrators have been unable to properly advise subordinate federal employees on what type of work they will have to do during the resignation period and many other questions.
One version of the Fork in the Road email suggests that vacations are an option, which is likely not the case. Federal employees can expect to work to some degree (or perhaps full time) from home if they accept the deferred resignation offer. We just don’t know what will happen.
The Reality of the Resignation Offer
We are advising federal employee clients to seriously consider the risks before accepting OPM’s deferred resignation offer. While the offer is appealing to many, it involves a leap of faith. If something goes wrong with the resignation offer in the courts, such as it is found to have not been appropriated correctly by Congress, or whether it complies with the Administrative Procedures Act and other laws, individuals could be left without any option to challenge the agreement. We wrote about these issues when it first came out.
Furthermore, if that were to happen it is highly unlikely that the government would allow a federal employee to rescind their resignation. So the risk to federal employees might be that they accept the resignation offer and start on paid administrative leave, but could be at risk of being moved to an unpaid leave status until their resignation date.
Additionally, the government has backed off the initial plan to allow the individuals to not work at all during the deferred resignation period. It is very possible that most employees will have to work to some degree (or more) while awaiting their resignation date.
Settlement Agreements for Federal Employees
Additionally, the sample resignation agreements that we have seen (they keep changing) require a federal employee to waive all of their rights, including the right to enforce the deferred resignation agreement itself. This leaves federal employees without any recourse if something goes wrong. The latest version of the settlement agreement states the following in Section 13:
13. Employee forever waives, and will not pursue through any judicial, administrative, or other process, any action against [AGENCY] that is based on, arising from, or related to Employee’s employment at [AGENCY] or the deferred resignation offer, including any and all claims that were or could have been brought concerning said matters. This waiver includes all claims Employee may have under the Age Discrimination in Employment Act. Employee unconditionally releases [AGENCY] and its present and former employees, officers, agents, representatives, and all persons acting by, through, or in concert with any of those individuals, either in their official or individual capacities, from any and all liability based on, arising from, or relating to the matters that Employee may have against them, including any and all claims that were or could have been brought. Consistent with applicable law, Employee similarly waives any claim that could be brought on Employee’s behalf by another entity, including Employee’s labor union.
Because of this clause, the agreement could be viewed as a promise that cannot be enforced. The agreement should provide federal employees the right to rescind their resignation should some court stop payments to employees during this time or some other issue prevents it from working as planned. That was not included. Basically, if you take the resignation, you can expect to be held to it, whether or not you are paid while on leave.
In Sum — Balance the Risks
The federal employee resignation agreements may ultimately end up being fine. However, there is the chance that federal employees do not remain in a pay status if the courts get involved. One lawsuit filed just 2 days ago by a major federal employee union seeks to put an immediate stop to the program. A hearing is scheduled on this issue for today. If you are in a position to retire and the agreement looks good, a federal employee may want to consider it. If the federal employee is in a probationary status, they may also want to consider the offer.
However, for other federal employees the risk may just be too much. Because of the settlement agreements, federal employees will have to rely on the government to honor its promise without the ability to force them to comply should something go wrong.
Contact Us
Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
