On February 11, 2025, the Office of Personnel Management (OPM) had issued further updated guidance on its “Fork in the Road” deferred resignation program (previously discussed in this blog). The updated guidance was issued regarding the program, even though the program at the time was subject to a stay order from a federal district court that was later vacated by the court on February 12, 2025, and OPM has now announced that the program was closed to new applicants as of 7:20pm on February 12, 2025 (just over one hour after the court vacated the stay). However, as of the posting of this blog entry (on February 13, 2025), the updated guidance has now apparently been removed from OPM’s Chief Human Capitol Officers Council (CHCOC) website.
OPM’s primary focus in this guidance had been attempting to bring the deferred resignation program into compliance with the Older Workers Benefit Protection Act (OWBPA) without which the agreement could not waive any age discrimination claims by the employee. As previously discussed in this blog, earlier revisions to the draft waiver agreement issued by OPM added language designed to comply with OWBPA requirements. The OPM guidance memorandum had supplemented that language with detailed instructions for agencies to try to ensure that the program would be consistent with the OWPBA. Agencies were directed to provide employees over age 40 with a supplemental notice providing information required by the OWBPA. OPM had specified that the supplemental OWPBA notice should be written in plain language calculated to be understandable to an average federal employee eligible to participate, to explain the eligibility rules and time limits for the program, and to indicate which employees and units were eligible or ineligible (and the respective ages for those groups of employees).
OPM had directed agencies to check—upon receipt of a resignation under the deferred resignation program—whether or not the employee was actually eligible to participate, and whether or not their specific position had been excluded from the deferred resignation program either by the program itself or by the agency. OPM had stated that agencies must directly notify any ineligible employees who indicated their interest in participating in the deferred resignation program of their ineligible stats and warning them that they would be expected to continue reporting to work consistent with agency requirements.
As the program appears to remain in an active state of flux, review of any updates and new information (both from OPM and from the courts) is important for employees, to keep current on new developments.
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.