On Saturday, February 22, 2025, Elon Musk issued a social media post indicating an e-mail would be forthcoming to all federal executive branch employees, directing them to respond before midnight on Monday, February 24, 2025, with a listing of five major tasks performed in the prior week—or be deemed to have resigned if they fail to timely respond. According to press accounts, the Office of Personnel Management (OPM) subsequently issued an e-mail tracking Musk’s social media post, albeit omitting the threat of being deemed to have resigned; the e-mail also noted an exception for “classified information, links, or attachments,” a caveat also not included in Musk’s social media post. The press had also reported that a number of agencies’ managements had already issued instructions for their own employees to either not individually respond to the OPM e-mail (as the agency intended to respond), or else to defer responses pending further review and instructions from agency management. In this highly fluid situation, an examination of some of the related legal issues is timely.
Firstly, many federal employees’ activities are subject to information controls separate and apart from classified information issues referenced in OPM’s e-mail. For example, many agencies’ activities are subject to other information controls that are not strictly referred to as information classification in the colloquial sense of the term, for example “Sensitive Security Information” at the Transportation Security Administration, or information controls on law enforcement operations at the Federal Bureau of Investigation or other federal law enforcement agencies. Second, certain federal workplaces are subject to other statutory and regulatory restrictions regarding disclosure of information, for example the Privacy Act and federal health care agencies’ obligations under HIPAA and the confidential medical information restrictions under the Rehabilitation Act and its related implementation regulations (in particular, 29 C.F.R. §§ 1630.13, 1630.14). Third, many federal employees are professionals subject to professional confidentiality obligations: federal attorneys’ confidentiality duties under legal ethics rules to their federal agency clients, federal medical and mental health care providers’ professional confidentiality obligations, religious confidentiality obligations for certain federal civilian chaplains, etc… Finally, disclosures of these activities may also implicate other confidentiality and privilege issues from the agencies’ side (for example, possibly impacting agencies’ abilities to interpose deliberative process privilege or similar privileges in subsequent litigation, if the confidential advisors disclosed the substance of their confidential deliberative consultations with agency management in response to OPM’s e-mail).
Secondly, the question arises as to whether Musk’s threat to deem a failure to timely respond to be tantamount to a resignation is legally valid, and whether it is enforceable. That authority is not altogether clear, at least under present precedent. Under precedent, a resignation requires an affirmative act by the employee expressing their desire to resign, communicated to a responsible official (that is, the employee’s supervisor). See Balagot v. Dept. of Defense, 102 M.S.P.R. 96 (2006). Under longstanding precedent, a resignation that is coerced rather than voluntary is form of constructive discharge, which is subject to reversal by the Merit Systems Protection Board (MSPB) as a removal without due process. OPM itself also lacks plenary authority to remove employees at other federal executive branch agencies in the context of enforcing a resignation.
Insubordination charges would also run into of the Douglas mitigation arguments and also raise a further problems in the context of employees who are not scheduled to be working anytime between the afternoon of Saturday, February 22, 2025 and 11:59pm on Monday, February 24, 2025 (for example, employees on compressed or other alternate work schedules, employees who are on approved leave (whether it be sick leave, annual leave, Family and Medical Leave Act leave), employees who are on approved leave without pay status due to approved workers’ compensation claims), as well as employees who were unable to receive notice of the instruction (if, for example, employees who are in remote locations and could not receive word of OPM’s e-mail, employees who are medically incapacitated) or employees who might not be able to respond for reasons consistent with their agency assignments (for example, clandestine intelligence and undercover law enforcement agents who would risk breaking cover—and thus imperiling their safety and mission goals—by sending a timely response to OPM). OPM could not impose these disciplinary charges on its own authority; such authority lies with the employing agencies, who may be unwilling to discipline employees who were following the employing agency’s own instructions concerning how to respond to OPM’s e-mail.
Other implementation issues for the e-mail are also unclear. As of the issuance of this blog, no guidance has been issued as to whether agencies will be required to pay overtime or other compensation for employees who would have to work additional hours outside of their schedules to timely respond to OPM’s e-mail. Further, it may be difficult for employees whose duties do not necessarily involve performance of discrete and specifically identifiable projects and instead covering shifts at particular locations to maintain operations (for example, receptionists, firefighters, law enforcement and security, agency cafeteria staff, custodians, and telephone helpline staff) to identify five tasks or accomplishments that they performed.
Ultimately, employees may have to look to their line management for instructions on how to respond to OPM’s e-mail, as—for the reasons stated above—there may be defenses to possible discipline. The operative precedent applies the “obey first, grieve later” rule, under which an employee must obey a facially lawful instruction issued by one with apparent authority to do so in the first instance to the best of their ability, unless they are being required to perform a task likely to be personally hazardous to life or health, and then grieve the improper instructions later through proper channels. Further, discipline based on an employee’s refusal to violate a law rule or regulation is a Prohibited Personnel Practice, giving rise to a cause of action before the Office of Special Counsel and/or the MSPB. See 5 U.S.C. § 2302(b)(9)(D). Determination on whether or not these defenses would be viable for a given employee is highly fact- and circumstance-specific, and would require assessment by competent counsel.
If you are a federal employee seeking advice concerning this OPM e-mail, and wish to learn more about your right and how they apply to this situation, consider contacting Gilbert Employment Law to request an initial consultation.