On January 28, 2025, “hr@opm.gov” transmitted to almost all federal employees an email with the subject “Fork in the Road,” purporting to offer a deferred resignation program. The email offered federal employees until February 6, 2025, to submit a “Deferred Resignation Letter,” committing to a resignation effective September 30, 2025, to allow certain federal employees to avoid a return to office.
We continue to recommend extreme caution about OPM’s deferred resignation program as it is without precedent and lacks clear authority. There remain major unanswered questions as to how OPM intends to overcome conflicts with government-wide laws and regulations and to what extent agency heads will sign off on employee requests to resign pursuant to the program.
On February 4, 2025, OPM distributed another memo with updated guidance and a sample agreement. Knowing that this is a difficult choice for civil servants, we are offering our thoughts on the draft agreement in its current form. Note: this post does not constitute legal advice or comment on any individual situation.
OPM’s “Deferred Resignation Agreement” contains two major waivers of rights:
- A waiver of prospective rights to withdraw your resignation if conditions change or your agency does not adhere to its end of the agreement. The agreement gives the agency head sole and unreviewable discretion to rescind the agreement.
- A waiver of all rights to challenge all matters relating to your employment, including the right to bring claims if the agency rescinds the agreement and including a waiver of claims that a union or organization could bring on your behalf (such as a class action).
The global waivers of claims contained in the deferred resignation agreement are incredibly broad. The agreement appears to include a waiver of the right to bring any future claims – this is an improper overreach. There are no clear carve-outs to ensure that, for example, an employee can bring claims to challenge OPM determinations on benefits, nor are there exceptions for claims that cannot be waived under law, such as the right to file a federal worker’s compensation claim.
Employees must be aware that if they sign the deferred resignation agreement, they will be waiving any and all pending claims, including, for example, EEO complaints. Employees must be aware that if they sign the deferred resignation agreement, they are waiving their right to withdraw their resignation or claim that their resignation was involuntary. While these waivers may or may not ultimately be enforceable, they have significant consequences and must be carefully considered.
Multiple questions persist even with the agreement. For example:
- The Agreement includes a vague exception that provides that agencies can order an employee to work during the deferred resignation period “in rare circumstances.” There is no definition of “rare circumstances”, and thus still no guarantee that employees will remain on administrative leave.
- The provisions on getting a second job while still employed by the government should be viewed with extreme caution; anyone considering signing the agreement should first carefully review their agency’s ethics and conflict of interest rules to understand the limits and potential legal consequences on conduct during any deferred resignation period.
- Finally, in any situation where an employee is considering leaving the government, we advise that employees consult with their agency’s benefits counselor to determine their current entitlement to various benefits and how departing the government may impact those benefits.
In sum, the deferred resignation program remains vague and without guarantees. Employees choosing to accept the deferred resignation should first carefully consider the risks that they may be without legal recourse if the agency reneges on the agreement or that the terms may not be enforceable.