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Employment Lawyer Discusses what Trump Offer to Federal Employees to Resign Would Do

MICHEL MARTIN, HOST: Federal workers have up until February 6 to choose whether to voluntarily leave their jobs. The U.S. Office of Personnel Management, OPM, informed employees on Tuesday that if they hand in their resignation by next Thursday – that’s less than a week from now – most will be enabled to take leave and be paid up until the end of September. Michelle Bercovici is a work attorney who represents federal employees as a large part of her practice, so I asked her for her analysis about what OPM’s deferred resignation program would actually mean.MICHELLE BERCOVICI: I actually do not consider it so much a deal. I believe it’s a request to resign with a vague guarantee that, possibly, you might be kept in administrative leave status for as much as eight months – but no guarantees.MARTIN: Some people have been using the term buyout to describe what this is due to the fact that there seems to be the deal of administrative leave for as much as eight months if you take this deal. So is it a buyout?BERCOVICI: I would definitely not explain it as a buyout. I think that’s a really deceptive term to utilize in this scenario. When you think about a buyout, there’s generally some sort of composed agreement or a concrete offer to offer a benefit in exchange for waiving specific rights. That is not the case here.MARTIN: If clients ask you for your suggestions, what are you informing them?BERCOVICI: First thing we tell them is exercise extreme caution. There are no warranties included in this email. The only thing I can inform you for specific is that if you change your mind, the company’s most likely not going to let you withdraw that resignation, and you are basically offering up control over a lot.MARTIN: Is there some category of employee who you think this might benefit? Maybe they’re close to retirement. Is someone like that may this be an attractive offer?BERCOVICI: Folks near retirement require to be the most cautious because leaving earlier than meant can have serious consequences, potentially, on their benefits.MARTIN: Let me simply play a clip from the White House press secretary, Karoline Leavitt. She told press reporters that this is a bargain for individuals who do not wish to return to the office. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is a tip to federal employees that they need to return in – to work. And if they do not, then they have the choice to resign, and this administration is very kindly providing to pay them for eight months.MARTIN: You’re shaking your head no.BERCOVICI: It simply – in a manner, it breaks my heart that are being jerked around like this. It sends out a signal to me that this return-to-office order is in bad faith, that it’s developed to get folks who work actually difficult to resign. I believe it’s attempting to pull the wool over a lot of individuals’s eyes since there are no guarantees. And these are individuals who love their job. They love the objective of the agency. They work hard. And right now, they’re facing very difficult choices, especially if they’re remote. I indicate, it’s very coercive.MARTIN: You state it’s coercive. Because?BERCOVICI: Essentially, if you’re someone who resides in Oregon and has been told to report to D.C. or else we’re going to fire you, they might feel that they have no choice than to take this option.MARTIN: Do you prepare for legal obstacles simply to the offer itself? And if so, on what grounds?BERCOVICI: This deal, to be truthful, is so unprecedented that I believe a great deal of us are still attempting to figure out what to do with it. I’m not exactly sure if the deal itself may be challengeable. I think the bigger question is the execution of these terms. I’m not mindful of any authority that exists today for OPM to order agencies to give this variety of people administrative leave. So I believe it is quite potentially setting the stage for obstacles since I feel OPM has vastly exceeded their authority.MARTIN: That is Michelle Bercovici. She is a work attorney with the Alden Law Group here in Washington, D.C. Thank you a lot for signing up with us.BERCOVICI: Thank you so much for having me here.

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