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

MICHEL MARTIN, HOST: Federal staff members have up until February 6 to choose whether to voluntarily leave their tasks. The U.S. Office of Personnel Management, OPM, notified employees 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 up until completion of September. Michelle Bercovici is an employment legal representative who represents federal staff members as a large part of her practice, so I asked her for her analysis about what OPM’s deferred resignation program would in fact mean.MICHELLE BERCOVICI: I in fact don’t consider it a lot an offer. I believe it’s a request to resign with an unclear promise that, potentially, you could be kept in administrative leave status for job up to 8 months – but no guarantees.MARTIN: Some individuals have actually been using the term buyout to describe what this is because 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 describe it as a buyout. I believe that’s a really misleading term to use in this scenario. When you think about a buyout, there’s generally some sort of written agreement or a concrete offer to offer a benefit in exchange for waiving particular rights. That is not the case here.MARTIN: If clients ask you for your advice, what are you telling them?BERCOVICI: First thing we tell them is workout extreme caution. There are no warranties included in this email. The only thing I can inform you for particular is that if you change your mind, the firm’s probably 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 think this might benefit? Maybe they’re close to retirement. Is somebody like that may this be an appealing offer?BERCOVICI: Folks near retirement require to be the most mindful because leaving earlier than meant can have severe repercussions, possibly, on their benefits.MARTIN: Let me just play a clip from the White House press secretary, Karoline Leavitt. She told reporters that this is an excellent offer for people who do not wish to return to the workplace. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is a tip to federal workers that they need to return in – to work. And if they don’t, 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 simply – in a manner, it breaks my heart that federal staff members are being jerked around like this. It sends a signal to me that this return-to-office order remains in bad faith, that it’s designed to get folks who work truly difficult to resign. I believe it’s trying to pull the wool over a lot of people’s eyes since there are no assurances. And these are individuals who enjoy their job. They like the objective of the company. They work hard. And right now, they’re facing really tough choices, especially if they’re remote. I mean, it’s very coercive.MARTIN: You state it’s coercive. Because?BERCOVICI: Essentially, if you’re somebody who lives 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 option than to take this option.MARTIN: Do you expect legal obstacles just to the deal itself? And if so, on what grounds?BERCOVICI: This offer, job to be truthful, is so unprecedented that I believe a lot of us are still attempting to figure out what to do with it. I’m not sure if the offer itself might be challengeable. I believe the larger concern is the execution of these terms. I’m not knowledgeable about any authority that exists right now for OPM to order companies to offer this number of people administrative leave. So I believe it is quite possibly setting the phase for obstacles since I feel OPM has actually greatly exceeded 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 signing up with us.BERCOVICI: Thank you so much for having me here.

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