As the deadline for the deferred resignation offer for federal employees quickly approaches, the news keeps coming on it quickly. The latest update is that the Office of Personnel Management (OPM) has issued a memo that answers some frequently asked questions about the legality of the program.
We have seen a number of comments and questions from our readers questioning the legality of the offer and whether or not it is legally binding. OPM has obviously heard some of these questions as well and seeks to address them in the new memo.
Frequently Asked Questions From the OPM Memo
Here is a summary of the information in the memo.
Is the Offer Legally Binding?
OPM states:
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.
In addition, to assuage any concerns about enforceability, OPM has circulated a template contract to agencies that can be used to document employee resignations and formalize the government’s agreement to abide by the terms of the deferred resignation program Separation agreements entered into between an agency and its employees are legally binding.
Is Congressional Approval Required?
In a word: no. According to OPM:
Nothing in the deferred resignation program requires congressional approval. The program offers employees an exemption from return-to- work requirements and, in most cases, a significantly reduced workload during the deferred resignation period. Under the program, employees remain in duty status entitled to their regular pay and benefits. The program does not promise employees additional compensation that might require special congressional appropriations.
An employee who has chosen to participate in the deferred resignation program will not be placed at a disadvantage compared to other employees if congressional appropriations lapse. In the event of a partial or complete government shutdown, payments to all affected employees (regardless of whether they accepted the deferred resignation offer) would be temporarily paused. Upon passage of another appropriations bill, however, affected employees would be eligible for retroactive pay “at the earliest date possible” under the Government Employee Fair Treatment Act of 2019.
Nor would a shutdown impact the non-pay aspects of the deferred resignation program. Even if an employee’s job duties would generally require him or her to work during a shutdown, an “agency may allow an excepted employee to be off duty during periods when the employee was previously scheduled to be on paid leave,” including administrative leave.
May an Employee Be Placed on Administrative Leave During the Deferred Resignation Period?
Yes. OPM states:
The decision to grant administrative leave, and for how long, lies largely within the agency’s discretion. A statute governing administrative leave states that, “[d]uring any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days.” But binding regulations promulgated by OPM have interpreted that limitation to apply only to a “management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation.” The ten-day rule therefore poses no bar to the extended administrative leave contemplated by the deferred resignation program. And the regulations authorize administrative leave when, as here, the “absence is officially sponsored or sanctioned by the agency.”
May an Employee Get a Second Job During the Deferred Resignation Period?
OPM says that being placed on administrative leave helps to enable federal employees to do this. It writes:
Extended administrative leave frees an employee to obtain a second job. In doing so, employees must comply with the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635 and other applicable federal laws, as well as any agency-specific regulations. The ethical standards, among other things, provide that “[e]mployees shall not engage in outside employment or activities . . . that conflict with official Government duties and responsibilities.” By minimizing an employee’s job duties and limiting the number of matters in which he or she is involved, administrative leave reduces the potential for conflicts with any outside employment.
Does the Deferred Resignation Email Comply with Privacy Rules?
OPM says it does. The memo states:
OPM was authorized to send the email announcing the deferred resignation program by its broad authority to oversee the federal workforce. OPM is authorized to store employee responses under existing systems of records, including systems encompassing personnel records and correspondence to and from the agency. And the deferred resignation offer explicitly provides that, by responding to the email, employees consent to their resignations being shared with their employing agencies. The Privacy Act of 1974 authorizes disclosure of personally identifiable information “with the prior written consent of [ ] the individual to whom the record pertains.”
Employees’ resignations are stored on secure government systems at OPM. Although the E-Government Act of 2002 requires agencies to conduct a Privacy Impact Assessment when developing certain information technology systems, no such assessment was required here. Longstanding OMB and OPM guidance expressly provide that Privacy Impact Assessments are unnecessary when a system collects information exclusively from government employees, not from the public.
In its frequently asked questions about the deferred resignation program, OPM has posted these FAQs that are related to this topic:
How will I know my resignation has been received and accepted?
You will receive an email confirming receipt with additional information on next steps. Given the volume of emails, this confirmation email may take up to 72 hours. You should retain the record of your resignation email.
Is there a formal agreement I can sign with my agency reflecting the terms of this offer?
Yes. If you are eligible for the deferred resignation program and accept it, your agency can execute paperwork reflecting all the terms.
Deferred Resignation Program Agreement Template
We also now know what those formal agreements look like. The OPM memo published today contains a template for agencies to use in processing federal employees’ resignations.
A copy of the agreement template is included below for reference.