On Sunday, February 2, 2025, the Office of Personnel Management (OPM) updated its Frequently Asked Questions (FAQ) guidance page on its recent “Fork in the Road” deferred resignation program (previously discussed in this blog); a mass e-mail also went out to executive branch employees on this update guidance.
While the FAQ updates did address a few of the possible legal deficiencies in previous announcements, many still remained unaddressed. The FAQ update alleged that OPM was going to grant agencies Voluntary Early Retirement Authority (VERA) for program participants, although OPM has not publicly released documentation confirming that the agency-by-agency OPM approval had been issued, as required under present OPM regulations implementing the VERA statutes.
The update clarified that federal employees awaiting deferred retirement still must obey government ethics regulations concerning outside employment and conflicts of interest. The update also clarified that employees in the deferred resignation program would remain subject to furlough in the event of a lapse of appropriations, although asserting that participants would be eligible for back pay after the furlough pursuant to a 2019 statute previously discussed on this blog. The FAQ did not, however, discuss how the costs for the program would be budgeted by OPM (which, if it exceeds appropriations, could raise issues under the federal Antideficiency Act).
The FAQ referenced there being a possible written agreement for program participants to sign—but did not provide a copy of the written agreement at that time. Finally, the FAQ alleged that communications regarding the program would be allegedly covered by existing OPM Privacy Act system of records notices (SORNs)—without specifying which SORN was involved. The FAQ also does not provide any explanation on how the information collection might be in compliance with certain other statutes. For example, a currently-pending lawsuit alleges that OPM’s information collection e-mails for the deferred retirement program violate section 208 of the E-Government Act of 2002, Pub.L. 107-347, codified at 44 U.S.C. § 3501 note, which requires the government to conduct a privacy impact assessment before initiating a new information collection.
As the program appears to remain in an active state of flux, review of any updates and new information is important for employees, so that they can make an informed decision regarding the program.
If you are federal employee and wish to discuss your rights in conjunction with this “Fork in the Road” deferred retirement program, consider contacting Gilbert Employment Law to request an initial consultation.