On January 28, 2025, a mass e-mail with the subject line “Fork in the Road” went out to federal civil service employees directly from the Office of Personnel Management (OPM). OPM reposted the e-mail on its website, along with a “frequently asked questions” (FAQ) page and a more technical guidance memorandum issued by OPM. As many media accounts have presented somewhat inaccurate regarding the program described in this e-mail, some clarification might be useful.
Before discussing any clarifications, it should be noted that any federal employee considering responding to this “Fork in the Road” e-mail would be well advised to confer with competent legal counsel for advice before responding to the e-mail, to ensure that they are making an informed decision.
First, while many press outlets have referred to this particular program as a “buyout,” it is not a buyout in the normal sense of the term. Normally, in federal sector employment law, a reference to a ‘buyout’ contemplates the money payment from the Voluntary Separation Incentive Program (VSIP) which accompanies use of Voluntary Early Retirement Authority (VERA), hence the common term “VERA/VSIP.” However, the program depicted in the Fork in the Road e-mail is not a VERA/VSIP. None of the requirements for a VERA under 5 U.S.C. §§ 8336, 8414 or for authorization of VSIP payments under 5 U.S.C. § 3521 et seq., or their respective implementing regulations, appear in the “Fork in the Road” e-mail. Instead of a VSIP cash payout, employees (under the guidance memorandum, not the e-mail) are offered paid administrative leave, and the e-mail itself appears to authorize employees to continue teleworking up until their deferred resignation date, as an apparent exception to the return-to-work executive order previously discussed in this blog. As it is not a VERA, a resignation under the policy does not give any early retirement eligibility to employees who were not otherwise already eligible for immediate retirement. The separations could also be treated as a resignation rather than a RIF or downsizing, which may potentially have impacts on the ability to collect unemployment benefits, depending on the unemployment insurance laws in a given state.
This policy does not appear to allow those employees who were not otherwise eligible for telework to begin doing so, and does not provide any effective recourse if the employing agency were to then renege on the offers of telework and administrative leave. This policy document does not create any sort of an enforceable contract—it instead states the terms of an alleged new federal program which could be changed later.
The policy does not guarantee that employees responding “resign” would in fact be accepted into the program: the e-mail, for example, allows an exception for an undefined group of employees “in any other positions specifically excluded by your employing agency,” in addition to excepting Postal employees, and employees in an undefined group of positions “related to immigration enforcement and national security.” Employees excluded from coverage who respond “resign” risk just gratuitously resigning without receiving any benefits in exchange if they try to ‘sign up’ for the program without first being certain that they are covered.
The policy does not guarantee that an employee will remain employed up through their deferred retirement date. No provision in the policy protects those in the program from being removed early if they are subject to a disciplinary removal or a reduction in force in the interim. Accordingly, the policy does not provide a panacea for employees who may be facing discipline to avoid their removals. To the contrary, if an employee resigns under the program with discipline pending, there is a good chance that their SF-50 and other separation paperwork would record that they resigned “ILIA” (in lieu of involuntary action), which is the opposite of a ‘clean-record’ resignation, consistent with OPM’s Guide to Processing Personnel Actions.
Also, employees are at risk of not being able to rescind a resignation later, if they change their mind. The FAQ page notes “Employees have the right to request a rescission of their resignation at any time and the employing agency will need to review such recission requests. As noted in the deferred resignation letter, it is the objective of the program to move quickly to consolidate and/or reassign roles and in many cases place employees on administrative leave which would likely serve as a valid reason to deny recission requests.” Preexisting Merit Systems Protection Board precedent prevents employees who filed deferred resignations from validly cancelling the resignation before the effective date if, for example, the employing agency had taken steps to begin backfilling the position first. With the published FAQs warning that a deferred resignation under the program may not necessarily be able to be cancelled later, there may be challenges to appealing the resignation later as a ‘constructive discharge.’
It is not clear if the administrative leave promised under OPM’s guidance memorandum is necessarily compliant with statute. As previously discussed in this blog, the Administrative Leave Act of 2016, codified in relevant part at 5 U.S.C. § 6329a, placed a 10 calendar day per year limitation on use of normal administrative leave. Neither the “Fork in the Road” e-mail nor OPM’s issuances explain how the alleged program is in compliance with that law.
Finally, neither the “Fork in the Road” e-mail nor OPM’s related issuances clarify if program participants would be required later to agree to any sort of a waiver or release of claims against the government in exchange for being permitted to participate in the program.
Based on the ambiguities and issues discussed above, any federal employee considering responding to this “Fork in the Road” e-mail would again be cautioned to confer with competent legal counsel for advice before responding to the e-mail, to ensure that they are making an informed decision.
If you are federal employee and wish to discuss your rights in conjunction with this “Fork in the Road” program, consider contacting Gilbert Employment Law to request an initial consultation.