WASHINGTON, D.C. (Bloomberg Law) — President Donald Trump‘s voluntary resignation offer to federal workers leaves them with few legal options if they decide to take the deal and later try to sue.
Employees have until 11:59 p.m. today to decide whether to take an offer to go on administrative leave and continue collecting a paycheck through Sept. 30. In exchange, they must waive their right to challenge the arrangement in court, according to a Feb. 4 statement from OPM, forcing them to trust the Trump administration will honor the deal.
“Civil servants need to think very carefully about the risks posed by an offer like this given the legal questions surrounding it and whether they truly think the offer is going to be upheld,” said Nick Bednar, an administrative law professor at University of Minnesota.
Unions are already attacking the deal in court and through agency grievances, potentially giving an out to workers who accept it. But attorneys warned that, if the deal stands, staffers who voluntarily go on administrative leave might not be able to backtrack later.
They’ll have hard time convincing a judge to take their side, said Mary Kuntz of Kalijarvi, Chuzi, Newman & Fitch P.C., who represents federal employees in discrimination cases
“You can’t bring a lawsuit until you’re harmed,” Kuntz said, adding that they’d have more success if they challenge a layoff.
The Trump administration has said it will lay off a portion of the remaining staff—expanding on other wide-ranging efforts to shrink the federal workforce, such as targeting probationary employees and staffers who work on diversity, equity, inclusion, and accessibility programs.
Is the Offer Legal?
The American Federation of Government Employees, the largest union for federal workers, spearheaded a Feb. 4 lawsuit to block the voluntary resignation offer. It argued that agencies can’t promise to pay employee salaries before Congress sets aside the money. The case is pending in the US District Court for the District of Massachusetts.
Congress set aside funding for most agencies through March 14, and agencies don’t have permission to promise salaries beyond that date, Bednar said.
“Nothing in the deferred resignation program requires congressional approval,” OPM Acting Director Charles Ezell and General Counsel Andrew Kloster wrote on Feb. 4, before AFGE filed its complaint. They added that the program doesn’t promise “additional compensation” that would require lawmaker permission.
Separately, the deal’s provisions appear to conflict with a law Congress passed in 2016 that limits administrative leave to 10 workdays per calendar year. The Biden administration in January created an exception for employees under investigation.
But Ezell and Kloster said federal departments can ignore that cap, pointing to a regulation that gives agencies power to place employees on leave.
OPM’s sample resignation agreement further demands employees give up the right to challenge how the Trump administration upholds its side of the deal. Employees must also confirm that they are resigning “voluntarily” and that their agency isn’t forcing them to leave.
The contract is “definitely questionable” because OPM is giving employees a short time window to decide whether to leave, said Michael Fallings, a federal employment lawyer at Tully Rinckey PLLC.
“They’re giving employees a week to decide how to proceed with their career,” he said.
