The Trump Administration offered federal workers the opportunity to take a deferred resignation, effective at the end of the fiscal year. The offer was sweetened with the ability to remain on telework and/or to not work at all during the interim between submitting the resignation and leaving the payroll in September 30.
So – is it a good idea? Should you take it? Is it even legal? Let’s start with legality. Some people are arguing that the offer violates the anti-deficiency Act because there is no money appropriated for payments to people who are not working, or that there is no money appropriated beyond the expiration of the current continuing resolution. For those reasons, they are saying the Administration is violating the law. The truth is far less clear. Administrations have significant leeway when it comes to administrative leave. Agencies approve administrative leave for many reasons, sometimes for months at a time. You won’t find anything in existing law or regulations that explicitly says they can offer long term administrative leave to huge numbers of people, but you also will not find anything that says they cannot.
In cases like this, the answer is likely to eventually come from the courts. Because the practice of approving administrative leave for long periods of time has existed for many years, and the real question here is the result of the scale of the offer rather than the mechanics of offering administrative leave, I believe the courts will rule that the Administration does have the authority to make the offer. That leaves the question of making an offer that involves money for later in the fiscal year beyond current appropriations. I believe that is not going to be an issue. Let’s say an agency ran a reduction in force (RIF) that was effective September 30. Given our experience in the past 50 years where Congress fails to do its job and pass appropriations bills on time, the same argument could apply – i.e., a RIF is illegal because the severance pay and lump sum leave payments employees are entitled to would come from money that has not yet been appropriated. No reasonable person would make that argument. I would be stunned if the Supreme Court agreed that the offer violates the anti-deficiency act.
That leaves us with two big questions. Is this approach an effective way to downsize the government? Should employees accept the offer? The answer to the first question is no. It is not a good way to downsize. The offer is far too broad and covers positions that are difficult to fill and/or require extensive training to become proficient.
Normally, an agency seeking to downsize will identify key jobs that must remain filled due to mission requirements. Those jobs are typically not covered by buyout offers, because letting the people go will just result in vacancies that must be filled. Extensive losses in mission-critical jobs could cause mission failure. In the private sector, the consequences of mission failure might be a few bad quarters with less profit or even losses. In government, mission failure could result in the air traffic control system not working, social security payments not going out, a national park not being able to remain open, a Veteran not receiving health care to which s/he is entitled, and more. It appears the people who crafted the offer are aware of that, because they have said agencies can exempt some positions. Agencies are starting to do that.
That potential exemption is probably not enough to eliminate the potential for very bad outcomes. My own experience in running downsizing efforts is that the people most likely to accept offers to leave are the best performers. People who are highly motivated and are in marketable occupations will have little trouble finding a new job. They are typically the people who are willing to take a chance on something new. That means the very people we would want to retain are the ones most likely to leave. The people who want to stay out of sight, never take risks, and do as little as possible are not going to jump to the front of the line to leave. Their lack of motivation and probable lack of skill makes them poor candidates to enter the job market. So, in effect, we will be paying the best employees to leave and holding on to the worst.
That leaves us with the final questions. Should employees accept the offer? Is it likely the Administration will actually do what they say? The answer is the same as the answer to many Human Resources questions. It depends. Are you a risk-taker? Do you have skills that are in demand in this labor market? And are you ready to leave the federal workforce? If the answer to all three of those is Yes, then accepting the offer may make sense. If the answer to any of them is No, then it is probably not a good idea to accept. The question people keep asking about whether the Administration will honor its offer is a bit more complex.
I believe their intent is to do what they said and honor the offer. OPM has clearly stated that they intend to honor resignations submitted under the program. The problem is that employees have to make a commitment before they know if they will be able to take administrative leave during the period between March 1, 2025 and leaving the payroll on or before September 30, 2025. Agencies are already narrowing the scope of the offer and telling some employees who have already accepted that they will have to continue working until the effective date of their resignations. Absent that benefit, the only real advantage to accepting the offer is that OPM has also approved early retirement for employees who resign under the program. That is a real benefit and there is no guarantee that it will be offered again later.
Would I accept the offer if I were a federal worker? Maybe. If I wanted to retire early and could take early retirement and have seven months of administrative leave, I might say yes. If early retirement was not something I needed and I could get the seven months of administrative leave, the answer might still be yes. If the administrative leave was not available to me I would say no, because there is no benefit to submitting a practically irrevocable resignation months in advance.
This approach to downsizing is so unprecedented that no one really knows how it will turn out. It may result in tens of thousands of employees leaving, but it may turn out to be much ado about nothing. It may break some agencies that the American people don’t want broken. But it might result in effective downsizing in some agencies without the pain of large scale RIFs.
It is a sweeping use of executive power and is likely completely within the President’s authority to act as Chief Executive. That means the Administration gets credit for any resulting benefits, and gets the blame for any bad outcomes. Only time will tell whether it was a good idea or not.
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