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

MICHEL MARTIN, HOST: Federal workers have until February 6 to choose whether to willingly 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 allowed to take leave and be paid until completion of September. Michelle Bercovici is an employment attorney who represents federal staff members as a big part of her practice, so I asked her for her interpretation about what OPM’s deferred resignation program would in fact mean.MICHELLE BERCOVICI: I actually don’t consider it so much an offer. I think it’s a request to resign with a vague promise that, possibly, you could be kept in administrative leave status for as much as 8 months – but no guarantees.MARTIN: Some people have actually been using the term buyout to explain what this is because there appears to be the offer 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 believe that’s a very misleading term to use in this scenario. When you consider a buyout, there’s typically some sort of composed contract or a concrete deal to supply an advantage in exchange for waiving certain rights. That is not the case here.MARTIN: If clients ask you for your guidance, what are you informing them?BERCOVICI: First thing we tell them is exercise severe caution. There are no warranties contained in this email. The only thing I can inform you for particular is that if you change your mind, the company’s probably not going to let you withdraw that resignation, and you are essentially quiting control over a lot.MARTIN: Exists some classification of employee 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 mindful because leaving earlier than intended can have major consequences, 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 individuals who do not want to go back to the office. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is a suggestion to federal employees that they have to return in – to work. And if they do not, then they have the alternative to resign, and this administration is extremely generously offering to pay them for eight months.MARTIN: You’re shaking your head no.BERCOVICI: It just – in a method, it breaks my heart that federal staff members 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 developed to get folks who work really tough to resign. I think it’s attempting to pull the wool over a great deal of people’s eyes due to the fact that there are no warranties. And these are individuals who love their job. They like the objective of the company. They strive. And right now, they’re facing very tough options, especially if they’re remote. I mean, it’s really coercive.MARTIN: You state it’s coercive. Because?BERCOVICI: Essentially, if you’re somebody who lives in Oregon and has been to report to D.C. or else we’re going to fire you, they might feel that they have no option than to take this option.MARTIN: Do you prepare for referall.us legal challenges just to the deal itself? And if so, on what grounds?BERCOVICI: This offer, to be truthful, is so unmatched that I believe a lot of us are still attempting to determine what to do with it. I’m not sure if the deal itself might be challengeable. I believe the larger concern is the execution of these terms. I’m not mindful of any authority that exists today for OPM to buy agencies to offer this number of people administrative leave. So I believe it is quite perhaps setting the phase for difficulties because I feel OPM has actually greatly surpassed their authority.MARTIN: That is Michelle Bercovici. She is an employment legal representative with the Alden Law Group here in Washington, D.C. Thank you a lot for joining us.BERCOVICI: Thank you a lot for having me here.

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