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Employment Lawyer Discusses what Trump Offer to Federal Employees to Resign Would Do
MICHEL MARTIN, HOST: Federal employees have until February 6 to decide whether to willingly leave their tasks. 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 to take leave and be paid up until the end of September. Michelle Bercovici is an employment lawyer who represents federal staff members as a big part of her practice, so I asked her for her analysis about what OPM’s deferred resignation program would really mean.MICHELLE BERCOVICI: I really don’t consider it so much an offer. I believe it’s a request to resign with a vague pledge that, potentially, you could be kept in administrative leave status for up to eight months – but no guarantees.MARTIN: Some people have actually been using the term buyout to describe what this is since there seems to be the deal of administrative leave for approximately 8 months if you take this offer. So is it a buyout?BERCOVICI: I would absolutely not describe it as a buyout. I think that’s a very deceptive term to use in this scenario. When you consider a buyout, there’s typically some sort of composed agreement or a concrete offer to offer an advantage in exchange for waiving certain rights. That is not the case here.MARTIN: If customers ask you for your advice, what are you informing them?BERCOVICI: First thing we inform them is exercise extreme caution. There are no warranties contained in this e-mail. The only thing I can inform you for certain is that if you change your mind, the firm’s probably not going to let you withdraw that resignation, and you are basically offering up control over a lot.MARTIN: Is there some category of employee 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 since leaving earlier than planned can have serious 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 good offer for individuals who do not wish to return to the office. Let me just play it.(SOUNDBITE OF ARCHIVED RECORDING)KAROLINE LEAVITT: This is an idea to federal workers that they have to return in – to work. And employment if they don’t, then they have the option to resign, and employment this administration is really kindly using to pay them for eight months.MARTIN: You’re shaking your head no.BERCOVICI: It simply – in a way, employment 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 developed to get folks who work actually hard to resign. I think it’s trying to pull the wool over a great deal of individuals’s eyes due to the fact that there are no guarantees. And these are individuals who enjoy their task. They enjoy the objective of the agency. They work hard. And today, employment they’re dealing with very difficult options, especially if they’re remote. I indicate, it’s extremely coercive.MARTIN: You say it’s coercive.
Because?BERCOVICI: Essentially, if you’re somebody who lives in Oregon and has been told 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 just to the deal itself? And if so, on what grounds?BERCOVICI: This deal, to be truthful, is so unmatched that I think a great deal of us are still attempting to find out what to do with it. I’m not exactly sure if the offer itself might be challengeable.
I think the bigger question is the execution of these terms. I’m not familiar with any authority that exists right now for OPM to purchase agencies to offer this number of individuals administrative leave. So I think it is very much perhaps setting the stage for difficulties because I feel OPM has actually significantly surpassed their authority.MARTIN: That is Michelle Bercovici. She is a work lawyer with the Alden Law Group here in Washington, D.C. Thank you so much for joining us.BERCOVICI: Thank you a lot for having me here.
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