Legal questions linger over deferred resignation program as feds feel pressure to accept offer
“I don’t like this deferred resignation. I do think it is playing on people’s fears,” Michael L. Vogelsang, Jr. said.
Agencies are now offering the Deferred Resignation Program directly to employees, as opposed to a centralized Office of Personnel Management rollout. Funding is in place to pay workers through Sept. 30, but legal experts say the program is still in legally murky waters.
Some legal questions around the program still linger. For instance: What authority allows agencies to place employees on administrative leave for more than 10 days? And how enforceable is the agreement if an agency decides to change its mind later on?
The second round of the resignation program comes as potential layoffs are looming , and those early- or mid-career federal employees are feeling a lot of pressure to accept the program.
“This administration has been very clear that it wants to trim the federal government. I think the rollout of the terminations and the [reductions in force] have created this fear. Now, let’s do the second round of deferred resignations now that we have a fearful federal employee again. So what sounds planned to me is you give someone an option of hope, if they don’t take it — make the world difficult. Then you dangle the hope again to see who gets the second bite,” said Michael L. Vogelsang, Jr., a principal at the Employment Law Group.
Vogelsang said the program might be valuable for workers who are absolutely sure they will be terminated in the near future and believe they can secure another job within the next six months.
Another factor to consider is how transferable an employee’s skills are outside the government, since those workers whose skills don’t easily translate to the private sector may be better positioned to legally challenge a reduction in force.
“I don’t like this deferred resignation. I do think it is playing on people’s fears, but it could have value for those who feel they could probably find a job soon. I think it has less value to people who think this is the end of a career. I think that’s going to be where the decision making is. And then it depends on, ‘Do I have a fight in me?’ It’s pretty clear the government is going to be fighting these probationary terminations and RIF appeals. So unfortunately, anyone who does want to challenge those RIFs, I encourage people to do that sort of self-reflection,” Vogelsang said.
What to consider before signing a separation agreement
Federal employees who accept the deferred resignation program must respond “Resign” to their agency’s email offer. A formal contract is then issued. However, if they decide not to sign it, there’s no binding agreement.
Before signing the paperwork, it is worth reviewing the scope and the timeframe of the claims a being waived. Some agreements may seek to waive rights to challenge past claims, such as discrimination or retaliation up to the date of signing, and potential future claims that could arise before their official resignation date on Sep. 30.
“Does the waiver of claims extend after the date of signature? And if so, what is their comfort level for doing that?” Vogelsang said.
There are also legal protections for employees over the age of 40. They must be given at least seven days to review their separation agreement and rescind the offer if they decide to do so.
While employees under 40 don’t automatically get that option, it is worth checking with HR to confirm whether that option is available.
Future employment and conflicts of interest
Vogelsang said while most DRP agreements allow federal employees to work another job while on paid administrative leave, it is crucial to check the language of the separation agreement.
When it comes to outside employment the litmus test is usually whether an employee’s prior government role could give the new employer an unfair advantage.
‘The textbook example is if your job in the government was approving signing contracts — you can’t then take a job with a contractor whose contract you signed as a government employee. Usually things are not that cookie cutter, but the idea is you cannot use your former government employment to the unfair advantage of your new contractor employee. So I always recommend going to the agency ethics office. Almost every government agency has an ethics office that has attorneys on staff, and that is their job. Their job is to give you an answer,” Vogelsang said.
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