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 jobs. The U.S. Office of Personnel Management, OPM, notified workers on Tuesday that if they hand in their resignation by next Thursday – that’s less than a week from now – most will be to take leave and be paid up until the end of September. Michelle Bercovici is a work lawyer who represents federal employees as a large part of her practice, so I asked her for her interpretation about what OPM’s delayed resignation program would really mean.MICHELLE BERCOVICI: I really do not consider it a lot a deal. I think it’s a demand to resign with an unclear promise that, possibly, you could be kept in administrative leave status for up to eight months – but no guarantees.MARTIN: Some people have been using the term buyout to describe what this is since there appears to be the deal of administrative leave for up to eight months if you take this deal. So is it a buyout?BERCOVICI: I would absolutely not describe it as a buyout. I believe that’s a really deceptive term to utilize in this situation. When you think about a buyout, there’s usually some sort of composed agreement or a concrete deal to provide a benefit in exchange for waiving particular rights. That is not the case here.MARTIN: If customers ask you for your guidance, what are you informing them?BERCOVICI: First thing we inform them is exercise extreme caution. There are no assurances contained in this e-mail. The only thing I can tell you for specific is that if you alter your mind, the firm’s most likely not going to let you withdraw that resignation, and you are essentially giving up control over a lot.MARTIN: Exists some category of worker who you believe this might benefit? Maybe they’re close to retirement. Is somebody like that might this be an appealing offer?BERCOVICI: Folks near retirement need to be the most cautious because leaving earlier than meant can have major job effects, job possibly, on their benefits.MARTIN: Let me just play a clip from the White House press secretary, Karoline Leavitt. She informed reporters that this is a great offer for job people who do not wish to go back to the workplace. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is an idea to federal employees that they need to return in – to work. And job if they do not, then they have the choice to resign, and this administration is extremely generously offering to pay them for 8 months.MARTIN: You’re shaking your head no.BERCOVICI: It simply – in such a way, 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 is in bad faith, that it’s created to get folks who work really difficult to resign. I believe it’s trying to pull the wool over a lot of individuals’s eyes because there are no guarantees. And these are people who like their job. They love the objective of the company. They work hard. And right now, they’re dealing with really hard options, especially if they’re remote. I indicate, it’s extremely coercive.MARTIN: You state it’s coercive. Because?BERCOVICI: Essentially, if you’re somebody 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 choice than to take this option.MARTIN: Do you prepare for legal difficulties just to the deal itself? And if so, on what grounds?BERCOVICI: This offer, to be sincere, is so extraordinary that I believe a lot of us are still trying to determine what to do with it. I’m uncertain if the deal itself might be challengeable. I believe the larger question is the execution of these terms. I’m not aware of any authority that exists today for OPM to purchase agencies to provide this variety of people administrative leave. So I think it is quite perhaps setting the phase for obstacles 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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