OPM `Delayed resignation ” offers sparks of the Rafale of legal questions

The “deferred resignation” offer of the staff management office raises a multitude of legal issues without easy answers to federal lawyers.

Lawyers claim that the offer – stated in the Tuesday evening email of the OPM to all federal authorities – is not rooted in any specific program or regulation to reduce federal workforce or perform Voluntary separations. The OPM told employees that the deadline for accepting the resignation offer is February 6.

“It is, I think that at the moment, intentionally vague, and it does not allow enough people to be able to give solid advice to employees to be able to make informed decisions,” said Kevin Owen, associate At Gilbert Employment Law, said in an interview. “And this arouses a significant concern in the community of federal employees.”

The Trump administration has not published any additional public orientation on the program beyond a memo of questions frequently asked questions.

Owen specifically stressed that the OPM has not yet asked employees who oppose to renounce the rights or the capacity to call staff actions.

“Is a question, where is the power to set up this program?” Will they try to attach chains at the end of this process which renounce the rights? He does not yet seem completely baked in the oven, “said Owen.

When setting up the program, OPM refused to use existing regulations that allow agencies to offer employees a buyout. Lawyers have specifically stressed that programs such as the volunteer of the incentive to the payment authority, which allows agencies to offer employees payments with a lump sum to $ 25,000 to separate voluntarily.

“This” deferred resignation program “is not proposed in accordance with an established regulatory framework, there is no fund reserved for this program, and there is no guarantee that your agency will be able to place you on administrative leave for the Eight months period, ”wrote the partner of the group Alden Law Michelle Bercovici in a blog article today. “There is no precedent for this program, and its provisions are directly contrary to the previous directives of the OPM on the appropriate uses for administrative leave.”

Bercovici has recommended that federals consult the staff of benefits, human resources and other “appropriate experts” before resigning from the government.

“A” unique “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,” she added.

The American Federation of Government employees also warned employees not to take the delayed resignation offer “at its nominal” value in a leaflet distributed today. AFGE warned that it “could also face legal challenges that could change the terms of all parts of the program”.

Although the legal status of the OPM offer has not yet been disputed, the AFGE leaflet advises the units and the local councils that they may consider files grievances alleging that the program violates the agreements or collective negotiation regulations.

“There will certainly be a challenge on this,” said Derrick Hogan, partner of Tully Rinckey, in an interview. “At one point, a court will have to decide whether this may remain in force or not.”

But lawyers do not know how exactly the program will be disputed in the short term.

“This offer really got out of the left field for everyone, and therefore I think it is a bit early to determine what type of dispute there can be, in part because many of that is unknown,” said Owen .

Some lawyers have highlighted the use of administrative leave as a potential problem. The OPM tells agencies to place employees who accept the offer on administrative leave until September 30.

But the OPM in December finalized the new administrative leave regulations. The rules implement the law on administrative holidays of 2016, which imposed more stringent requirements on the use of administrative holidays by agencies.

The agencies are required to implement the new rules no later than September 13.

“Very clearly, the Congress said:” We do not want executive agencies to waste the dollars of taxpayers in this way, having people paid not to work, “said Mary Kuntz, partner at Kalijarvi, Chuzi, Newman & Fitch, in an interview. “I think it could be disputed. their own regulations.

Federal employment lawyers have also examined whether OPM’s initial email could be considered federal to adopt the resignation offer. “For the moment, we cannot give you complete insurance concerning the certainty of your position or your agency,” says the email of the OPM.

But Owen said that the language alone is unlikely to respond to the bar of a complaint to a “constructive discharge” before the Merit Systems Protection Board. He warns customers, in particular managers, to avoid discussing the offer with their subordinate employees.

“Especially if the manager makes a kind of promise or interpreter what was in this offer in a way that does not take place,” said Owen. “So, if an employee feels induced by a kind of advantage that has not been given to them, this will open the door to certain valid calls to the MSPB on a complaint of constructive discharge.”

Meanwhile, certain legislators and defenders of employees have questioned the intention behind the OPM offer, as well as if there will be enough funding to potentially cover thousands of employees on administrative leave until september.

But not to follow the offer could open the Trump administration until legal action.

“If they have not followed this, then you mainly consider an assertion of constructive discharge where:” Hey, I accepted this on the basis of these promises. I was going to be paid, I was going to get advantages until September 30, and now you have retired to me ” said Hogan. “So I hope they will continue it, because then I think that opens up another box of verses if they did not do it.”

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