On the evening of February 3, 2025, some Federal employees received a draft Deferred Resignation Agreement, wherein, in exchange for agreeing to, among other things, a “deferred resignation” on/by September 30, 2025 and waiving any action against “[Agency],” “[Agency]” agrees to place the employee on paid administrative leave from March 1-September 30, 2025. That draft agreement, like the Fork in the Road offer, is simply not valid.
Initially, for all the reasons discussed in our post on the original Fork in the Road offer, the draft agreement fails to accurately and completely capture employee rights and agency obligations. For example, the draft agreement omits employee rights and agency obligations under the Older Workers Benefit Protection Act (OWBPA).
In addition to the issues we discussed in our earlier post, the draft agreement also omits a clear understanding of who the agreement is between – is it between the employee and its employing agency only, the employee and some individual at their agency, the employee and someone else? This point is important, because the draft agreement includes a waiver of rights to the favor of the “[Agency].” Who is the “[Agency]”? Is the employee also waiving their rights against seeking redress from the Office of Personnel Management (OPM) in the future, if, for example, there is an error in their retirement annuity?
The draft agreement even omits the specific identity of who at the “[Agency]” will be signing the agreement.
We could go on. But we’ll note one last thing before we conclude. The draft agreement, if fully executed, is not a valid contract. In the draft we have reviewed, at paragraph 9, it provides, “Employee understands that this agreement cannot be rescinded, except in the sole discretion of the [AGENCY HEAD], which shall not be subject to review at the Merit Systems Protection Board or otherwise.” What that means is, once agreed to, the agency head, whoever that may be, can rescind the agreement. They could rescind it on February 27 or September 29, 2025. They could rescind it the day before the employee retires or resigns. They could rescind it for a valid reason or a not valid reason. And, if rescinded, the employee has agreed that they may not appeal that rescission.
Contracts 101, a first semester, first year class at most law schools, teaches us about something called “consideration.” For a contract to be valid, both parties to that contract must receive something of value. Here, the employee may think that being paid to not work has value. But that value can be rescinded at any time and for any reason, as the draft agreement is now written. As such, that value is not real. It is not consideration. And the employee is not receiving something of actual value. We give the draft agreement an F.
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: www.jeffreylawgroup.com or 202.312.7100.