The memo further asserts that use of administrative leave—typically used for excused absences of only a day or two, or even only a matter of hours—for such an extended period is within an agency’s discretion. Image: Postmodern Studio/Shutterstock.com
By: FEDweek StaffThe “deferred resignation” offer is both legal and binding on the government, OPM has said in guidance responding to what it called “various legal critiques” issued just two days before the Thursday (February 6) deadline for employees to decide whether to accept.
Prominent among the concerns raised employees, unions and attorneys specializing in civil service law has whether the government might not hold up its end of the bargain, given that the program has existed mainly in the form of an email and a set of questions and answers from OPM.
Says the new memo on chcoc.gov:
“The deferred resignation program offers employees who opt into the program an exemption from any return-to-work requirements and full pay and benefits regardless of workload, with the expectation that most employees will transition their duties and be placed on administrative leave for the bulk of the deferred resignation period. Those assurances are binding on the government. Were the government to backtrack on its commitments, an employee would be entitled to request a rescission of his or her resignation.”
Also under question has been whether promising continued full pay and benefits through September 30 is within the executive branch’s discretion, given that funding for most agencies lapses March 14, requiring further action by Congress.
Says the memo, “Nothing in the deferred resignation program requires congressional approval . . . The program does not promise employees additional compensation that might require special congressional appropriations.” It further says that while employees on deferred resignation would be subject to an interruption of pay should there be a funding lapse and government shutdown, they would be covered by a law guaranteeing later payment.
Those points do not, however, directly address a concern about the standing of those on deferred resignation status should Congress significantly reduce agency funding levels for the remainder of the fiscal year, as GOP leaders there have said is their intention.
The memo further asserts that use of administrative leave—typically used for excused absences of only a day or two, or even only a matter of hours—for such an extended period is within an agency’s discretion; and that the program complies with Privacy Act requirements regarding the collection and storage of information on federal employees.
Attached to the memo is a template (see related story) that OPM said is intended “to assuage any concerns about enforceability”—heavy on legal phraseology such as “whereas” and “wherefore”—spelling out in more detail the actual terms.
Some of the agreement – such as #13 and #14, “are fairly boilerplate,” said Ryan Nerney, a managing partner at Tully Rinckey PLLC whose focus includes national security and federal employment law. “However, paragraph 13 is interesting because it essentially prevents any employees from bringing any action against the employer related to their employment and/or the deferred resignation program,” he said.
“We also interpret this to include a waiver/withdrawal of any pending actions that an employee may have against the Agency as well, which is something the employees who are contemplating taking this deferred resignation should understand (i.e. any pending MSPB and/or EEOC case would be withdrawn pursuant to this agreement),” Nerney added.
Further complicating matters, several unions are seeking a temporary restraining order and in a joint statement said the move was made to force the government “to articulate a policy that is lawful, rather than an arbitrary, unlawful, short-fused ultimatum which workers may not be able to enforce.”
The suit was filed in the US District Court for the District of Massachusetts, and asserts that it is unclear how the offer can be guaranteed when the funds needed are not yet appropriated. AFGE National President Everett Kelley described the offer as “unfunded, unlawful,” and without guarantees, saying “we won’t stand by and let our members become victims of this ‘con.’”
Whether the latest OPM guidance will make much difference in acceptance rates is to be seen, coming as late as it did. In addition to the reservations about the legal status of the program addressed in the memo, many employees have said they still have not been definitely informed whether they are eligible and that they are reluctant to step forward should it turn out that they are not. Some also have complained of feeling rushed into accepting the offer—open for just more than a week—and intimidated by hints of budget cuts and RIFs potentially ahead.
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