Reprinted from Law360
4 Questions About Trump’s Federal Worker Resignation Policy
President Donald Trump’s offer of letting federal workers resign with several months of paid administrative leave raises questions about its legality and whether workers will actually get paid, attorneys said. Under the deferred resignation program, which the new presidential administration announced Tuesday, federal workers can email the word “Resign” in the subject line by Feb. 6 and receive all pay and benefits regardless of their daily workload until Sept. 30, or earlier if they decide, according to the U.S. Office of Personnel Management. “If you choose not to continue in your current role in the federal workforce, we thank you for your service to your country and you will be provided with a dignified, fair departure from the federal government utilizing a deferred resignation program,” OPM said in an email to workers. Employment law observers are skeptical.
“There are a lot of questions about whether the president and OPM have the authority to offer these kinds of packages,” said Judy Conti, government affairs director at the pro-worker National Employment Law Project. Here, Law360 explores four questions that stem from the policy.
Is This Legal?
A major question on people’s minds is whether the Trump administration has the authority to do such a program. “They haven’t gotten the money approved by Congress, and they’ve just offered a pig in the poke to federal workers to take this eight-month severance package, with no authority to offer it to them,” said Seth Goldstein of Goldstein & Singla PLLC, who represents workers. “They don’t have power of the purse.”
Samantha Sanders, director of government affairs and advocacy at the left-leaning Economic Policy Institute, raised a similar concern. Sanders was a policy adviser in the U.S. Department of Labor’s Wage and Hour Division under former President Barack Obama. “It’s also not really clear to me that the executive branch has the authority to pay people for work not being done, like if it’s not being used for its appropriated purpose of staffing full-time employees,” Sanders said.
However, another DOL veteran, Dave Dorey of Liff Walsh & Simmons, who served in the first Trump administration, said there is a difference between severance and garden leave, under which a resigning employee doesn’t have to work for a set time after leaving but still receives pay, and that the deferred resignation program appears to be the latter.
“Maybe there is an argument that there is no authorization for severance,” Dorey said. But garden leave, or the similar administrative leave, “is time-tested as being perfectly fine, and it’s something that is given by agency heads on a regular basis for any number of reasons and often across the board,” he said. He pointed to former Secretary of Homeland Security Alejandro Mayorkas, who under President Joe Biden gave out administrative leave.
Will Workers Get Paid?
Another issue on observers’ minds is whether workers who resign through the program will actually get paid. Democratic Sen. Tim Kaine of Virginia raised this during a floor speech on Tuesday. “This is a guy who made this promise to contractors again and again and again when he was a private business guy,” Kaine said, referring to Trump. “If you accept that offer and resign, he’ll stiff you just like he stiffed the contractors.” EPI’s Sanders and others questioned whether workers who resign also will continue receiving benefits. “It seems like a pretty risky move” for workers, she said.
OPM said in Tuesday’s announcement that workers under the program would continue to receive benefits. However, the federal employee union American Federation of Government Employees said in an FAQ on Wednesday that “employees should not take the program at face value,” and that there is no “guarantee that an [employee] whose resignation is accepted will receive the benefits that the program purports to offer.”
What Are The Details?
Attorneys on both sides said there didn’t appear to be enough details about how this program will actually work. “This is an incredibly unorthodox approach,” said Jeff Ruzal of Epstein Becker & Green, who represents employers and was a DOL trial attorney under Obama. “President Trump is stepping into the shoes as the direct employer of upwards of two million federal workers and saying, ‘Hey, voluntarily resign by, effectively, putting the word resign in a reference line, and we’re going to pay you,'” Ruzal said. “There’s no further specific promise. There’s seemingly no other documentation that spells out the fine print.” That lack of specificity can hurt employees, said Stephanie Rapp-Tully of Tully Rinckey PLLC, who represents workers. She said it’s unclear what legal remedy workers who resign would have if the administration failed to pay them, given the lack of specificity in the government’s communications so far.
“There’s no indication that this is creating any sort of agreement that usually predicates someone’s severance from employment,” Rapp-Tully said. “Usually when someone agrees to resign and they are being offered something in exchange, that establishes a sort of contract. But there’s nothing to indicate that anything in how this has gone about has all those elements.” It can also hurt the government, Ruzal said. “There’s a lot of potential liability that’s out there,” he said. Among those is wage and hour risk, particularly if people still end up having to do some work between now and September, he said. “Then you have a serious problem,” he said. “This voluntary payment for resignation is not payment as wages or payment for work being done.”
But Dorey of Liff Walsh & Simmons said that seen as garden leave rather than severance, this program is not so unusual or risky for the federal government. “This happens in the private sector a lot, where you want to keep someone on payroll for various reasons towards the end of their employment, you do, but you don’t require them to do anything,” he said.
What Happens To Jobs?
Observers also questioned what will happen to the federal government workforce when people leave these jobs, especially when coupled with a hiring freeze. “All of these folks that leave will not be replaced,” NELP’s Conti said. “There are not new jobs that are going to be open all of a sudden, so what’s going to happen to the services and oversight that they provide?” AFGE National President Everett Kelley addressed this in a statement on Tuesday. Kelley said, “Purging the federal government of dedicated career civil servants will have vast, unintended consequences that will cause chaos for the Americans who depend on a functioning federal government.”
— Editing by Leah Bennett.
Liff, Walsh and Simmons’ Labor and Employment Group continually tracks labor and employment developments that may impact you or your business. For questions, please contact Dave Dorey, partner and head of the Group.
This alert provides general information and is not a full analysis of the matters discussed. It may not be relied on as legal advice. Dave Dorey, a Liff, Walsh & Simmons partner licensed to practice law in Maryland, the District of Columbia, Virginia, and California, contributed to the content of this alert.
