On January 28, 2025, Federal employees received an offer that they should decline. Sent by email from “HR” at OPM.gov, with the subject line “Fork in the Road,” the January 28, 2025, offer promises a “reformed federal work force [that] will be built around four pillars.” Those “pillars” include return to office, performance culture, more streamlined and flexible workforce, and enhanced standards of conduct. It threatened workforce consolidation, office relocations, and a new at-will employment status. It ends by offering employees the option of a “deferred resignation program,” wherein the employee will not have to return to the office, if they agree to resign by September 30, 2025. Federal employees should not take that offer.
First, Federal employees are already committed to supporting and defending the Constitution. They are already “reliable, loyal, [and] trustworthy,” and they strive daily for excellence in their work. To state otherwise, as “HR” did, is willfully uninformed.
Second, if you received the January 28 offer, absent exigent circumstances and if you are a tenured Federal employee, you should stay put. Do not accept the offer of a “deferred resignation program.” You have rights.
If you are a career tenured Federal employee, you have a constitutionally recognized property right in your continued employment with the Federal Government. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Board of Regents v. Roth, 408 U.S. 564 (1972). The U.S. Supreme Court has stated:
The essential requirements of due process… are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement…. The tenured employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. . .
Loudermill, 470 U.S. at 546. For example, under Chapter 75, of Title 5 of the United States Code, a tenured Federal employee has the statutory right to: (1) at least 30 days advance written notice stating the specific reasons for the proposed adverse action; (2) a reasonable amount of time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and, (4) a written decision and the specific reasons therefore at the earliest practicable date. 5 U.S.C. § 7513(b); see also Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999). In other words, “HR” has omitted from the January 28 offer key rights that employees are entitled to, if their department or agency moves to remove employees for alleged conduct or performance reasons.
Conveniently for “HR,” the January 28 offer also failed to recognize employee rights if in fact there is a reduction in force (RIF). Agencies must follow the RIF regulations at 5 C.F.R. Part 351, before separating or demoting an employee because of a reorganization, lack of work, shortage of funds… Each competing employee selected for release from a competitive level is entitled to a specific written notice at least 60 full days before the effective date of release, in accordance with 5 CFR Section 351.801 – 5 CFR Section 351.803. When a RIF is caused by circumstances not reasonably foreseeable, OPM may approve a notice period of less than 60 days, but at least 30 full days before the effective date of release. 5 CFR 351.801(b). The RIF notice must contain:
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- The action to be taken, the reasons for the action, and its effective date.
- The employee’s competitive area, competitive level, subgroup, service date, and three most recent ratings of record received during the last four years.
- The place where the employee may inspect the regulations and record pertinent to this case.
- The reasons for retaining a lower-standing employee in the same competitive level under 5 CFR 351.607 or 5 CFR 351.608.
- Information on reemployment rights, except as permitted by 5 CFR 351.803 (a).
- The employee’s right, as applicable, to appeal to the MSPB or to grieve under a negotiated grievance procedure.
5 CFR 351.802 (a).
An employee who receives a specific notice of separation must be given information concerning the right to reemployment consideration and career transition assistance under Subparts B (Reemployment Priority List), F, and G (Career Transition Assistance Programs) of 5 CFR Part 330. 5 CFR Section 351.803.
Additionally, “HR” ignored its obligations under the Older Workers Benefit Protection Act (OWBPA). To the extent that the “deferred resignation program,” will require participants over 40 years old to waive their rights as to age discrimination claims, any offer must be: 1) be written in a clear, understandable manner; 2) specifically refer to rights or claims under the ADEA; 3) not waive rights or claims that might arise after execution of the waiver; 4) provide valuable consideration in exchange for the waiver; 5) advise the complainant to seek the advice of legal counsel before signing; and 6) provide a “reasonable” period of time to consider the agreement. 29 USC 626(f)(2); 29 CFR 1625.22.
Further, no employee should accept the January 28 offer without a clear understanding of their rights, or lack thereof, to unemployment benefits, if they resign. We encourage anyone who may be considering the January 28 offer to contact their state unemployment office for more information.
The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. The Jeffrey Law Group, PLLC does not guarantee the accuracy of the legal information in this document. The Jeffrey Law Group, PLLC recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter.