If you are a federal employee who has received the Fork in the Road email offering the option of voluntarily resigning from your position in exchange for eight months of pay, the offer may sound tempting.
The OPM says the reason why federal workers are being offered deferred resignation is because the federal workforce will “undergo significant near-term changes” and as a results of those changes some employees may “wish to depart the federal government on terms that provide you with sufficient time and economic security to plan for your future — and have a nice vacation.”
While the program is pitched as taking a nice vacation, legal experts say the communication from the Office of Personnel Management is vague and misleading, and that federal employees should only consult with their human resources personnel, agency benefits personnel, legal counsel and their financial advisors before making any final decisions and to ensure they fully understand the implications of their resignation.
“A “one-size-fits-all” email from OPM does not take into account individual circumstances and should not be read to provide a guarantee as to your rights and pay,” the Alden Law Group said in a blog post.
And the OPM website about what employees will and won’t get if they choose to resign does not carry any legal weight, says Michelle Bercovici, a partner at Alden Law Group.
“I would not count on this FAQ that’s on the website. It’s not a published guidance document. It’s not part of the email that went out to employees. These FAQs don’t seem to be supported by any specific regulatory or statutory authority. I would not at all consider the FAQs to be binding terms of sort of agreement. And quite frankly, I don’t believe that OPM has the legal authority to actually guarantee that these employees will be kept in this sort of pay, non-duty status,” Bercovici told Federal News Network.
Overall, an agreement to resign from federal service is something that shouldn’t be taken lightly, experts say, and the decision to resign should only be made after fully understanding the implications regarding pension, health insurance, retirement eligibility, service tenure requirements, etc., especially given that the decision to resign is most likely irrevocable.
“OPM’s email and guidance makes clear that agencies are likely to refuse employee requests to withdraw a resignation under the deferred resignation program,” said the Alden Law Group.
Before resigning, federal workers should explore alternative paths, whether it’s retirement, reassignment, transfers, or Voluntary Separation Incentive Payments, known as buyout authority which allows agencies that are downsizing or restructuring to offer financial incentives to leave federal service voluntarily.
“The decision to resign should be truly voluntary, not made under pressure or without fully understanding the options. However, employees must decide in a high-pressure situation given this February 6th deadline,” Timothy Dowers, an associate attorney at John H. Haskin & Associates, told Federal News Network.
And while OPM said that resignation under this program does not affect future federal employment, federal workers should verify whether they will retain competitive status or reinstatement rights.
Lastly and more importantly, Shauna Weatherly, the president of Federal Subcontract Solutions LLC, encouraged federal employees to not act out of fear.
“I would caution anyone who wants to take this just because you’re afraid you might be fired, to keep in mind that federal employees do have protections. They have constitutional and statutory rights, in most cases, to advance notice and an opportunity to respond to disciplinary and adverse actions. There are rights and procedures that agencies are supposed to follow through the reduction in force, and those procedures are in place. So there are some protections there, and making a decision based solely on this letter is a very big risk,” said Bercovici.
And here are some questions to consider before replying “Resign” to the Fork in the Road email:
- How will resigning impact my retirement benefits?
- After September 30, 2025, how will my FERS/CSRS pension, annuity eligibility, and TSP contributions be impacted?
- If I have already submitted my retirement paperwork, can I withdraw my request and choose to retire at the end of the resignation period instead?
- Would early or regular retirement be a better option than resigning?
- What is the cutoff date for my health, vision, and dental insurance benefits?
- How does participating in this program impact my ability to work for the federal government in the future?
- Will I continue to accrue annual leave and sick leave? When will I receive my annual leave payout? What happens to unused sick leave?
- Can I negotiate different exit terms?
- What legal rights do I forfeit by voluntarily resigning?
- How do I outprocess?
In addition, Weatherly advised federal employees to keep a full copy of their electronic Official Personnel File on a non-work device, have a copy of current position description, have the latest copy of their Standard Form 50 with all blocks completed and to document all communications from government officials that entail any change of status of their employment to include change in their employment authority, their position, their duties, their pay, their duty station, and their benefits.
“Understand that there is a distinct difference between resign and retire. Ask questions and research answers from reputable federal labor attorneys and publications. Most of all, don’t react out of fear. Educate yourself,” said Weatherly.
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