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

MICHEL MARTIN, HOST: Federal employees have till February 6 to choose whether to voluntarily leave their jobs. The U.S. Office of Personnel Management, OPM, informed workers 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 until completion of September. Michelle Bercovici is an employment lawyer who represents federal employees as a big part of her practice, so I asked her for her interpretation about what OPM’s deferred resignation program would really mean.MICHELLE BERCOVICI: I in fact do not consider it so much an offer. I believe it’s a request to resign with a vague promise that, possibly, you might be kept in administrative leave status for approximately eight months – however no guarantees.MARTIN: Some people have been using the term buyout to explain what this is because there appears to be the deal of administrative leave for up to 8 months if you take this offer. So is it a buyout?BERCOVICI: I would definitely not explain it as a buyout. I think that’s an extremely deceptive term to utilize in this situation. When you believe of a buyout, there’s usually some sort of composed arrangement or a concrete deal to provide an advantage in exchange for waiving specific rights. That is not the case here.MARTIN: If customers ask you for your suggestions, what are you informing them?BERCOVICI: First thing we tell them is exercise extreme . There are no assurances consisted of in this e-mail. The only thing I can inform you for specific is that if you change your mind, the firm’s most likely not going to let you withdraw that resignation, and you are essentially quiting control over a lot.MARTIN: Is there some category of worker who you believe this might benefit? Maybe they’re close to retirement. Is someone like that might this be an attractive offer?BERCOVICI: Folks near retirement need to be the most cautious since leaving earlier than intended can have major effects, possibly, on their benefits.MARTIN: Let me just play a clip from the White House press secretary, Karoline Leavitt. She told press reporters that this is a bargain for people who don’t wish to go back to the office. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is a suggestion to federal workers that they have 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 8 months.MARTIN: You’re shaking your head no.BERCOVICI: It simply – in a way, it breaks my heart that federal workers are being jerked around like this. It sends out a signal to me that this return-to-office order remains in bad faith, that it’s created to get folks who work really difficult to resign. I think it’s trying to pull the wool over a great deal of people’s eyes since there are no guarantees. And these are individuals who love their job. They love the objective of the firm. They work hard. And right now, they’re dealing with extremely difficult options, particularly if they’re remote. I suggest, it’s extremely coercive.MARTIN: You state it’s coercive. Because?BERCOVICI: Essentially, referall.us if you’re someone who resides in Oregon and has been informed to report to D.C. otherwise we’re going to fire you, they might feel that they have no option than to take this option.MARTIN: Do you anticipate legal difficulties simply to the offer itself? And if so, on what grounds?BERCOVICI: This offer, to be sincere, is so unprecedented that I believe a lot of us are still trying to figure out what to do with it. I’m not exactly sure if the offer itself might be challengeable. I think the larger concern is the execution of these terms. I’m not aware of any authority that exists today for OPM to order agencies to offer this number of people administrative leave. So I believe it is quite perhaps setting the phase for challenges since I feel OPM has actually greatly exceeded their authority.MARTIN: That is Michelle Bercovici. She is an employment attorney with the Alden Law Group here in Washington, D.C. Thank you so much for joining us.BERCOVICI: Thank you so much for having me here.

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