Trump OPM buyout offers leave federal workers with risky decisions

The Trump administration and federal employee unions are in a head-to-head lobbying battle as workers face a Feb. 6 deadline to decide whether they want to participate in a government buyout.

The Office of Personnel Management (OPM) has led the charge in offering eight months of pay and benefits to workers should they wish to leave the federal service as President Trump forges ahead with a return to office mandate.

But the offer comes with plenty of legal and logistical challenges — details that have led unions and lawmakers representing districts with large numbers of federal employees to warn them against accepting the offer.

The government isn’t funded past March — raising questions over whether employees will actually be paid and whether it's within the bounds of the law to use money for a new program.

And provisions in the deal limit employees’ recourse if anything goes south — while retaining the government’s right to rescind buyout offers.

A Monday missive from the American Federation of Government Employees (AFGE), the largest federal employee union, cautioned workers about being “tricked” into taking the deal.

“AFGE urges federal workers not to take the Trump administration’s vague offer with conflicting details,” the organization said.

Other emails from the union have called it “legally dubious [and] financially reckless.”

Unions and OPM have been battling back and forth with Q&As and other memos meant to put employees at ease about taking the deal, or warn them about taking it.

OPM argues skepticism about the buyout offers is unwarranted.

“Union leaders and politicians telling federal workers to reject this offer are doing them a serious disservice. This is a rare, generous opportunity — one that was thoroughly vetted and intentionally designed to support employees through restructuring,” McLaurine Pinover, the agency’s spokesperson, said in a statement.

“Instead of spreading misinformation and using workers as political pawns, they should be making sure federal employees have the facts and freedom to make the best decision for themselves and their families.”

Dubbed “A Fork in the Road” — the same name as a piece of artwork recently commissioned by Elon Musk — the Department of Government Efficiency leader has framed the buyout offers as allowing exiting employees to “take the vacation you always wanted, or just watch movies and chill.”

But the fine print includes language that conflicts with Musk’s statements.

In rare cases, it says employees still may be expected to work during their eight months of administrative leave — something that would be up to the agency to determine.

And while it also says employees would be free to seek an outside job while still being paid by the government, there are limitations on that as well.

The offer also contains numerous provisions that waive an employee's right to challenge the terms of the deal.

“Employee forever waives, and will not pursue through any judicial, administrative, or other process, any action against [AGENCY] that is based on, arising from, or related to Employee’s employment at [AGENCY] or the deferred resignation offer,” the contact states, leaving space for employees to insert the agency where they work.

Another provision gives the government the right to rescind the agreement, and then bars employees from going to the Merit Systems Protection Board with a challenge.

“This agreement cannot be rescinded, except in the sole discretion of the [AGENCY HEAD], which shall not be subject to review at the Merit Systems Protection Board (MSPB) or any other forum, and waives all rights to challenge the resignation before the MSPB or any other forum,” it states.

OPM in one of its latest memos has sought to assuage employees.

In the event of a lapse in government funding, they say, anyone accepting the offer would get back pay, just like any other government employee.

It also says the deal is “binding on the government” and that “were the government to backtrack on its commitments, an employee would be entitled to request a rescission of his or her resignation.”

However, it’s not clear those statements are accurate given language in the proposed contract.

AFGE has sued to block the government from offering the deal, enumerating a lengthy list of issues with the offer.

“The Fork Directive is arbitrary and capricious in numerous respects, including that the Directive: (1) fails to consider possible adverse consequences of the Directive provided to millions of federal employees to the continuing functioning of government; (2) offers conflicting information about employees’ rights and obligations if they accept the government’s offer; (3) runs counter to long-standing rules and requirements for federal employees; (4) is contrary to reasoned practices of government restructuring, (5) ignores history and practices around effective workforce reduction, (6) sets an arbitrarily short deadline; and (7) is pretext for removing and replacing government workers on an ideological basis,” AFGE wrote in its suit.

They are not the only entity to cast doubt on the legality of the deal.

The Justice Department recently declined to endorse the legality of the deal, pinning assurances that the offer was legal on OPM — a departure from other agencies who adopted boilerplate language on their own behalf stating the deal was valid.

The offer could also violate the Antideficiency Act, which bars the government from spending beyond what is dictated in its budget and requires it to use federal funding as intended. And the amounts also exceed existing voluntary separation incentive payments that are typically capped at $25,000.

Despite those points, at least 20,000 employees have accepted the deal — an offer they can take simply by replying to an email with the word “resign.”

That’s just 1 percent of a federal workforce of about 2 million, a fraction of the 5 percent to 10 percent of workers OPM thought might take the deal.

A source told The Hill the Trump administration still expects the number of resignations to increase sharply ahead of the deadline at the end of the week.

The messaging around the offer has also included ominous language about what might come next for federal employees who don’t act.

“The majority of federal agencies are likely to be downsized through restructurings, realignments, and reductions in force. These actions are likely to include the use of furloughs and the reclassification to at-will status for a substantial number of federal employees,” one of the earliest offers to employees stated.

That was accompanied by a message that employees will also be evaluated on whether they are “reliable, loyal, [and] trustworthy.”

Sen. Tim Kaine (D-Va.) warned employees last week that if they seek to resign only to have their offer rebuffed, they could make themselves a target.

He pointed to the Trump administration’s swift reversal on a federal funding freeze, warning the same could happen with the buyouts.

“So if you resign, are you even going to get the pay? As soon as you say, ‘I’m resigning,’ and you send that, then the administration knows, ‘Oh, that person doesn’t want to work with us.’ That may not be such a good thing. What if they decide after 48 hours, just like they did with the funding thing, ‘Well, actually, let’s start over again’?” he said.

“As soon as I heard about it, it struck me there’s a lot of razor blades in that apple.”

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