CHCOC guidance states: "Employees who accept deferred resignation should promptly have their duties re-assigned or eliminated and be placed on paid administrative leave until the end of the deferred resignation period." Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffFederal employee unions and others are responding to the Trump Administration’s offer of deferred resignation – loosely being referred to as a “buyout” – questioning its legal basis and cautioning that the offer does not guarantee the promised benefits would be received, if taken.
“The so-called ‘deal’ is a hostile effort to disparage federal employees, weaken agencies and disrupt the valuable services that these employees provide to the public daily,” said NTEU National President Doreen Greenwald, in urging employees to pass.
“The OPM documents lack clarity about the exact terms of the offer, making it unreliable. We also question whether OPM has the legal authority to use a ‘deferred resignation’ to put people on extended administrative leave under these circumstances,” she added.
While workforce reductions would certainly impact the rolls of federal employee unions, federals employees themselves have taken to social media to question the offer and preach caution. Asked what legal issues could emerge, attorney Michael Fallings at Tully Rinckey PLLC pointed out “there could be legal challenges on whether the executive has the authority to try to reduce the workforce through this program, whether the buyout violates the voluntary separation incentive payment authority of only providing payments up to 25k, and whether this actually creates a valid contract.”
Sen. Tim Kaine, speaking on the Senate floor Tuesday evening after two of his staffers received the emailed offer declared it “fake,” asserting that the President does not have authority to make it, adding that there is no budget line item to pay people in this manner.
“So my message to Federal employees who received this is, yeah, the President has tried to terrorize you for about a week and then gives you a little sweetheart offer: If you resign in the next week, we are just going to pay you for doing nothing for the next 7 months … Don’t be fooled. He has tricked hundreds of people with that offer. If you accept that offer and resign, he will stiff you.”
Answering the most common question about the Deferred Resignation offer:
Yes, you can choose to resign and will no longer be required to work. Whether you travel, relax at home, or explore new opportunities, you’ll continue receiving your full government pay and benefits.— U.S. Office of Personnel Management (@USOPM) January 29, 2025
OPM and CHCOC published Q&As on the deferred resignation offer Wednesday morning, see:
Government-Wide “Buyouts”: Q&A on New Deferred Resignation Program
The American Federation of Government Employees published its own Q&A later in the day, highlighting questions and potential issues that may arise going forward.
AFGE FAQ on OPM’s Deferred Resignation Program Email:
1. What is the Deferred Resignation Program?
The Deferred Resignation Program (“Program”) was introduced by an email sent to federal employees on January 28, 2025. Preceded by threats to modify and downsize the federal workforce, the Program purports to allow federal employees to submit a resignation letter that will become effective on September 30, 2025. In exchange, the Program claims that employees will be exempt from “Return to Office” requirements and will maintain their current compensation and benefits until the effective date of their resignation.
Employees should not take the Program at face value. The Program documentation, including the introductory email, an associated guidance memorandum issued by the Office of Personnel Management (“OPM”) on January 28, 2025, and OPM-issued FAQs are riddled with inconsistencies and uncertainties. It is also unclear whether OPM has the legal authority to support the Program or its alleged benefits, and the eligibility criteria are vague.
2. Is the Program a buyout?
No, the Program is not buyout nor is it a Voluntary Separation Incentive Payment (“VISP”) program. Instead, it purports to offer employees the ability to submit a deferred resignation and claims employees that do so will continue to receive pay, while still possibly working, until September 30, 2025.
Notably, however, the Program contains no guarantee that an employee’s resignation will be accepted. Nor does the Program guarantee that an employee’s whose resignation is accepted will receive the benefits that the Program purports to offer.
3. If an employee chooses to accept the program, are they required to work during the deferred resignation period?
They may be. OPM’s statements are conflicting on this point. According to the OPM email and letter, employees will not be required to work in person but may be assigned remote work duties. The OPM FAQ page also suggests that employees will not be required to work except in “rare cases,” without defining what constitutes “rare cases.” At the same time, the FAQs describe the deferred resignation period as a “nice vacation” and the Program states that employees may be placed on “paid administrative leave.”
4. Can an employee take another job during the deferred resignation period?
The FAQ states that the resignation letter does not explicitly prohibit outside employment. However, other existing policies, such as agency-specific regulations requiring prior authorization for outside work, are likely to apply.
5. Are all federal employees eligible for the program?
No. Employees in positions related to immigration enforcement and national security, as well as those in any positions specifically excluded by their employing agency, are not eligible. USPS employees and military personnel are also excluded. There is no guidance on how employees can confirm their eligibility or if their agency has specific exclusions.
6. Will employees who opt-in be protected from termination before their resignation date?
Nothing in the Program documentation purports to prohibit the termination or separation of an employee who accepts deferred resignation. While the OPM email suggests that employees will maintain their compensation and benefits until the effective date of their resignation date, it does not explicitly state that employees are shielded from layoffs or other adverse actions before September 30, 2025. There is no guarantee that employees opting in to the Program will not be targeted for such actions.
The Program also does not indicate what may occur in the event of a lapse in congressional appropriations. At present, many agencies of the federal government are only funded through March 14, 2025.
7. What happens if an agency requires an employee to continue working despite OPM’s FAQ stating that continued work should be rare?
While OPM’s FAQ states that work will only be required in “rare cases,” the program’s details vary across the different OPM documents. If an agency insists on continued work, employees may not have a clear administrative remedy, as the enforceability of the promises and statements in OPM’s FAQ is uncertain.
8. What legal recourse do employees have if the government does not honor the terms of deferred resignation?
It is unclear what recourse, if any, employees might have if the government fails to honor the terms of their deferred resignation. There is no certainty that the statements made in the OPM Program documents will be legally enforceable. Even if the email and FAQ page are interpreted as an implied contract or offer, there is no guarantee that such a claim would be enforceable. For example, while each case will be fact-specific, resignation is generally considered to be a voluntary action. It is therefore unclear whether violations of the policy would be appealable to the Merit Systems Protection Board, through the grievance process, or any other forum.
9. How can employees ensure the administration will follow through on the Program?
Given the inconsistencies between Program’s various documents issued by OPM, as well as the ambiguous and conflicting language regarding work obligations and exclusions, there is no guarantee that the claims in the Program will be honored by the Government. The Program may also face legal challenges that could alter the terms of all or portions of the Program. Employees who opt-in to the Program will be at the mercy of the administrators of the Program, whose claims contain inconsistencies and lack stated legal underpinning.
10. Is there an assurance that the promised continued salary will be funded?
No. Nothing in the OPM documentation contains such an assurance. Moreover, because current appropriations for most civilian agencies are set to expire March 14, 2025, it is not guaranteed that agencies affected by the current appropriations bill will continue to have adequate funding for the promised salary beyond the bill’s expiration.
11. What actions can Locals and Councils take to protect bargaining unit employees from the Program?
Locals and councils may:
• Consider filing requests for information under 5 U.S.C. § 7114(b)(4).
• Consider filing a demand to bargain over the Program.
• Consider grievances alleging the Program violates terms of their collective bargaining agreement or regulations (e.g. regulations concerning administrative leave).
• Locals and councils may also have a basis for a grievance or unfair labor practice charge alleging, among other things, a bypass of the Union with respect to communications about the Program directly to employees.
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See also,
What to Know About the New Federal Application Process
Top 10 Provisions in the Big Beautiful Bill of Interest to Federal Employees
A Pre-RIF Checklist for Every Federal Employee, From a Federal Employment Attorney
Work Longer or Take the FERS Supplement Now: Which is Better?
