OPM continues to tweak 'deferred resignation' provisions as unions press court challenge

Updated at 3:06 p.m. ET on Feb. 13.

As the Trump administration and federal workers await a written decision from a federal judge on the White House and Elon Musk’s "deferred resignation" program, the Office of Personnel Management issued additional guidance this week tweaking its provisions so that it conforms with federal law prohibiting ageist employment actions.

In a memo to agency heads Tuesday, Acting OPM Director Charles Ezell instructed agencies to treat the deferred resignation program, in which most of the federal workforce was offered paid administrative leave in exchange for departing government by Sept. 30, as an “exit incentive program” under the Age Discrimination in Employment Act, “out of an abundance of caution.” But since Wednesday's court ruling clearing the way for the program to move forward, that memo was removed from the Chief Human Capital Officers Council website.

Democrats, employee groups and federal employment experts have all warned of the proposal’s dubious legality and provisions that open the door to the government potentially reneging on the promised pay and benefits.

The guidance advises that federal workers who are 40 and older must be given 45 days to consider the deferred resignation program, as well as a seven-day window after signing the agreement to revoke it. They also must be advised of their right to seek legal representation prior to signing the agreement.

“When entering into DRP agreements with individuals aged 40 and over, agencies should provide a supplemental notice that makes written disclosure of additional, agency-specific disclosures required by the [Older Workers Benefit Protection Act],” Ezell wrote. “This is so an employee has enough information regarding the program to allow the employee to make an informed choice whether to sign a waiver.”

Ezell’s memo also provides slightly more information regarding how agencies should respond to employees who opted into the deferred resignation program but whose positions ultimately were exempted by management.

“Agencies additionally should notify these employees directly that, despite having indicated their interest in participating in the DRP, they are ineligible and will be expected to continue reporting to work consistent with agency requirements,” he wrote. “The notice to ineligible employees additionally should clarify that if they nonetheless wish to end their employment (separate from the DRP), they should contact their agency’s HR office.”

Though the program initially set a deadline of February 6 for employees to decide whether to take the program, it has since been paused as U.S. District Judge George A. O’Toole Jr. prepares a written decision on whether to issue a temporary restraining order further delaying its implementation.

In a court filing Tuesday, the American Federation of Government Employees highlighted the removal of Federal Labor Relations Authority Chairwoman Susan Tsui Grundmann and Merit Systems Protection Board Member Cathy Harris. The Justice Department has argued that federal courts lack jurisdiction to hear the unions’ case because employment actions and labor issues traditionally are channeled before those two bodies first.

“Both FLRA and MSPB board positions are subject only to removal for cause, and the functioning of both the FLRA and MSPB can be significantly hampered by the loss of members,” AFGE wrote. “As this court is aware, defendants contend—and plaintiffs dispute—that plaintiffs’ complaint should be channeled to the MSPB or FLRA, and that those forums would provide ‘meaningful judicial review’ of claims like plaintiffs’ here . . . These terminations have now fundamentally weakened these entities and undermined their bipartisan composition, further impairing any purported opportunity for ‘meaningful judicial review’ of defendants’ Fork directive absent this court’s exercise of jurisdiction.”