Making sense of the chaotic state of the civil service
COMMENTARY | Answers to eight questions you may be struggling with after the "deferred resignation" offer.
Federal workers who received the "deferred resignation" offer on Jan. 27 have been debating what to do amid confusion about the details of the deal. There is a lot of misunderstanding (and lo and behold, even some disinformation) these days about what exactly is going on, so the editors of Government Executive asked me to try to explain some of it in layperson's terms...that is, in plain English, "non-HR" speak! That's no easy task, as we HR professionals (with lots of Office of Personnel Management and congressional help) have made this far too complicated, but I'm going to try to keep it all as simple as possible.
This originally started off as a "simple" explanation of Reductions in Force, but it turns out that there are a lot of layers here, as well as a bunch of antecedent steps that need explaining as well. So, I've put all of this in the form of eight questions:
(1) Is this all legal?
(2) What if I change my mind?
(3) But doesn't Congress have to authorize or appropriate funds for this?
(4) Am I even eligible?
(5) Should I worry about the deadline?
(6) What's the real number of those taking the "deferred resignation" offer?
(7) What happens if someone leaves voluntarily?
(8) What happens if I don't take a "deferred resignation" and am impacted by a RIF?
As readers can see, the "big" one about RIFs is last. That makes for a very long article, but you can just jump to the question(s) that most concern you.
For the record, I've vetted this with other HR pros, some still in government and some not, and for the most part, we're all in agreement about what the rules say, but not always, so in some cases, readers are stuck with my personal interpretations of those rules. Where that's the case, I've tried to say so. And I've also tried to keep my political views well hidden, as hard as that may be these days. With all those caveats, here goes…
Question 1: Is this all legal?
That's probably for the courts to figure out, but I personally think it is. Virtually all of the individual resignations I've seen over the years are "deferred" in that they are never effective on the date they are submitted. Rather, they are almost always "deferred" until some future date—typically one to two pay periods in the future—so, "all" that the Trump administration has done is apply this on a mass scale through the end of the current fiscal year. Indeed, one has to applaud the creativity of it.
But does that mass application somehow make it illegal? Probably not. As I said, individual deferred resignations are not at all uncommon. So, while a court has delayed the across-the-board offer (at least as of this writing), my bet is that an appellate court, or eventually the SCOTUS, will find them to be OK.
That means that neither the courts nor Congress will likely bail you out; you'll still have to decide yourself, based on your own unique individual circumstances. And while it may be worth equivocating just a bit on the legality of a "deferred resignation," I can pretty much promise if someone takes that offer, legal or otherwise, that will be enforceable. Even more so if you take the "early retirement" option that's recently been added to the mix. It's a contract, and if a current or former federal employee relies on that offer to make life decisions, then I can almost guarantee that a court will enforce it. But that does NOT make it right. That's another matter.
Question 2: What if I change my mind?
It may not matter, especially if the agency has already done something with the position you have vacated (see below). But know this: If you change your mind—that is, if you take a "deferred resignation" and then, before its effective date, you have second thoughts and want to withdraw it—your agency may refuse to do so. By yet another law, agencies have the discretion to accept or reject your attempt to withdraw your resignation, and no one can predict whether they will exercise that discretion and let you recant. They could tell you're out of luck, and that you must stick with your original resignation decision. So, if you take a "deferred resignation," assume it's irrevocable.
Question 3: But doesn't Congress have to authorize or appropriate funds for this?
Unfortunately, I don't think so. At least not if standard budget rules apply. First, the "deferred resignation" offer is technically NOT a buyout. There is no money involved and no outlay of funds, and thus, calling it a buyout is a misnomer. Moreover, there is NO actual agency "civilian pay budget" for Congress to approve, so there is nothing to authorize or appropriate. If there were, we'd be having a different conversation. But an agency's civilian payroll (which, outside of the Defense Department, usually constitutes up to 85% of an agency's congressional appropriation) is embedded in that agency's larger Operations and Maintenance (O&M) budget and once that's authorized and appropriated by Congress, that's it. Indeed, Congress has imposed strict controls on moving money into and out of that O&M appropriation, but so long as the agency stays within that top-line amount, there is no need for additional congressional approval. Thus, "deferred resignations," even on a mass scale, have NO actual civilian pay impact.
Rather, as noted, civilian payroll is funded out of an agency's O&M account, and that account covers all sorts of other various and sundry things, from paint and carpet and furniture to civilian payroll and the cost of support contractors. So long as an agency stays within that top-line number, there is NO Anti-Deficiency Act problem. And to make sure it does, an agency just needs to NOT immediately backfill the vacancy created by a departing employee. And since the money for those now vacant positions has already been appropriated but not yet spent, there's plenty of opportunity to avoid and/or cover any ancillary expenses. That probably makes your head hurt, but that's as simple an explanation as I can come up with.
So, it doesn't really matter whether an employee leaves, either because of an actual $25K buyout (later increased to $40K for DOD) or because he/she takes a "no cost deferred resignation" and administrative leave. So long as the federal agency stays within their much larger O&M budget to cover any expenses associated with those options (which they can easily do just by waiting a bit to backfill the vacancy created by a person voluntarily departing), they're OK. To be sure, there may be some OMB folks who'd take issue with this, but bottom line: in my view, NO additional appropriations are necessary, and there is NO Anti-Deficiency Act issue. As I have said, the people who came up with this were very creative in that regard, but as noted, there are lots of other issues at play here.
Question 4: Am I even eligible for a "deferred resignation" ?
Unfortunately, that too depends on your individual circumstances, made even more complicated by the addition of OPM's Voluntary Early Retirement Authority to the mix, but it also depends on decisions by your agency. That's the main difference between a mass offer of "deferred resignations" and a far more localized decision about your own continued employment...the two are very, very different. One is governmentwide, and the other is confined to your agency and even your own commuting area,
Let's focus on the latter. At the end of the day, your agency head (or the person acting for that appointee) can determine whether you are even eligible for a "deferred resignation." And some agency heads—like the secretary of Veterans Affairs—have "exempted" some 300,000 VA employees from even taking the "deferred resignation" offer. Others, like the Cybersecurity and Infrastructure Security Agency and our intelligence services, are less clear in that regard, so if you're uncertain, I'd ask a supervisor and/or your HR office for the latest information. But again, taking that "deferred resignation" offer and your continued employment are two very different things, so don't let others sway you in that regard. YOU have to decide what's best for you.
Question 5: Should I worry about the OPM deadline?
The deadline, whenever it may be (as of this writing, it's been extended by a few days) is important, mainly because the Trump administration needs a "forcing function" to get people to make a final decision. Otherwise, we'll just procrastinate, right? So, my advice is to pay attention to that deadline, whenever it is. Respect it and meet if you can. BUT don't blindly rush to do so if you're at all hesitant. You must still make your decision based on your own personal circumstances when and if you can.
For example, if you already know you can get a job in the private sector, or you know you can comfortably retire (especially now that VERA has been added to the mix), maybe you should take a "deferred resignation." And if your position is at risk—for example, if your official Post of Duty is likely to be eliminated, or if you signed up for remote work and you do not want to relocate to your home office's official location—you may want to think about it as well.
But if you're unsure, don't rush it. Odds are that there'll be an extension of that deadline, either as ordered by a court and/or as issued by OPM and/or your agency, if they don't get the number of voluntary takers that they need.
Question 6: What's the real number of those taking the "deferred resignation" offer?
This is something that we were concerned about back when we first introduced Voluntary Separation Incentive Pay (otherwise known as buyouts) in DOD. And it should be a concern now. How many of those taking the Trump administration's "deferred resignation" offer would have left anyway? That's what "rent taking" is. It's a term used by economists to describe those who are paid—or in this case, who accept something of equivalent value, like a "deferred resignation" and administrative leave—to do something they would probably have done for free. Historically, over 100,000 employees leave the federal government each year, voluntarily and otherwise—that's normal attrition, or what is called the "quit rate" that you've heard so much about—through a combination of retirements (regular, and if approved by OPM, VERA), resignations, etc. So, when some official claims that over 60,000 employees have accepted the "deferred resignation" offer so far, that is probably true, but most likely some significant percentage of that number would have left anyway, even without the offer.
Question 7: What happens after someone takes a "deferred resignation" and leaves?
Let's assume that someone takes a "deferred resignation" offer and leaves, or at least signals that they intend to do so by the end of September 2025. One of two things can then happen next.
One, if the departed employee's agency is trying to downsize (that is, by reducing the agency's overall headcount of federal employees in their budget, especially in the position's commuting area), they would just cancel the vacant position and "harvest" the payroll savings for their larger O&M budget.
Or two, if the agency is more interested in assuring that the person eventually filling that job would help them implement their policy or program agenda (in other words, to ensure policy alignment between that person and the Trump administration's agenda), they would backfill that vacancy with someone who promises to do so. Of course, that also assumes that the person they select also has the qualifications to do the work—that is, the job would be filled based on merit (that's another Trump executive order). That may be what's happening in our Intelligence Community and in CISA: Both need all the skilled positions they have and then some, so reducing head count isn't an issue with them; rather, they may be concerned about ensuring policy alignment.
But therein lies the potential rub of a Schedule F 2.0 (otherwise known as the new, still-draft Policy/Career Schedule) and the confirmation of Russ Vought as the new OMB director. He has been a champion of Schedule F, so it's probably coming soon to a theater near you. The latest version of that says that those covered by it cannot be fired for their political views so long as they faithfully follow the lawful orders of the Trump administration and its appointees. That's the good news. The bad? That could too easily turn into a political loyalty test, with the politicization of an impartial, politically neutral civil service the likely result. That's what everyone is concerned about.
Question 8: What happens if I am impacted by a RIF?
Get ready for the game of musical chairs called a Reduction in Force. First, let's explode a myth. There's no such thing as governmentwide layoffs. Unless and until someone in Congress changes the law—and to be sure, this could happen in an omnibus FY 2025 budget reconciliation and/or an extension of the national debt limit—a RIF is dependent on the budgets and appropriations of individual agency, cabinet, and/or subcabinet bureaus. And those budgets and appropriations eventually trickle down to a federal organization's Post of Duty and commuting area. That's where an agency's headcount of federal employees, and the funds to pay them, is usually determined. And that's where RIFs are defined...by what's called a competitive area. And in almost every instance, they are local, typically defined by geography. So, that's where we need to start.
For example, let's assume that I'm someone who works remotely full-time outside of the commuting area generally served by my POD. For example, my job has an official POD in Washington, D.C., but I took a remote job offer that allowed me to work (and live) out of my home in Omaha, Neb. With all due respect, that remote job is almost certainly at risk of being eliminated altogether and functionally transferred to a D.C. POD. Indeed, getting full-time remote workers to return to their official government offices was supposedly the original goal of the administration's "deferred resignation" offer. And in those circumstances, a RIF doesn't matter.
But if, on the other hand, your POD is likely going to continue, albeit perhaps at a reduced staffing level, and your agency doesn't get enough "deferred resignation" takers, then a RIF may be necessary. And your vulnerability in that case depends on a whole host of things, starting with your employment status. Thus, if you're a recent hire (that is, a probationary employee), you have almost no protection and can be let go with just a simple Termination Notice, so be prepared for it.
But if you've been around for more than a year and you've earned career-conditional or (even better) career status, you may survive. But there's still more to it than that. Your survival will also depend on whether you're a veteran or not. Veterans are the most protected employees in a RIF. In other words, they're the last to go, and by law, non-veterans are laid off before them. So, your veteran status matters as well.
Once all that has been determined, a retention register is developed by an agency, usually by commuting area, and it lists employees in seniority order by employment status, veteran status and more recently, by performance rating. Then the real fun begins. The most senior employees in each of those various categories 'bump' those employees who are junior to them (as we have said, seniority matters) and 'retreat' into their jobs. As a general matter, veterans bump non-veterans, who bump probationary employees, etc. and so on. Until some number of employees at the end of that daisy chain of personnel actions—typically non-veterans with very few years of service—actually lose their jobs.
That's the musical chairs part of all this. But all of this is usually confined to an agency's POD/commuting area and is driven by that agency's budget and appropriation as well as that agency head's decisions regarding structure, geographic distribution, needed vs. surplus skills, etc. And that agency head may be a political appointee or beholden to one, so take that into account. I know that's mind-numbing—we haven't even talked about qualifications standards (which are usually—but not automatically—waived by an agency in a RIF so that employees can "bump" into more positions) or performance ratings. The latter can also affect RIF standing, with higher performers retained over lower ones, all other things (like veteran status, etc.) being equal.
Based on my experience, there are anywhere from five to seven personnel actions (mainly comprised of the "bumping" and "retreating" that I mentioned earlier) before the last person in this dizzying daisy chain is involuntarily sent off the rolls. But in almost every instance, employees who are bumped retain their pay and/or their grades (that's yet another law), and employees who are laid off also get whatever severance pay they're entitled to, along with unemployment compensation, so if there are any savings to be had in a RIF, it only comes after a couple of years. Crazy? Yes. Time consuming and expensive? Also, yes. But a RIF is far more scalpel-like than the offer of mass "deferred resignations," insofar as it can target surplus skills and not just head count.
But here's the bottom line. If staffing in your POD is just being reduced, say from 100 down to 75 FTEs, then you have to calculate your own individual odds of being one of those 75 federal employees left standing. And if your odds are poor—if you're a probationary employee, a recent hire, a non-veteran with relatively few years of service, etc.—you need to consider taking a "deferred resignation," because you are most likely gone, gone, gone.
Can this process be reformed? Yes, to that too, but that takes an act of Congress, and you be the judge as to whether that's likely. And until then, while there is no such thing as governmentwide layoffs, it is generally true that for every person who voluntarily retires (early or otherwise) or resigns (deferred or otherwise) and leaves their federal job, that likely means a fellow employee is "saved" as a result, assuming everything else is equal.
In the end....
To sum up, let me add three apparently contradictory things. First, let me belabor the point. YOU have to make a decision. Just YOU. Assume that no one—whether that's a plaintiff in a lawsuit, a court, and agency head, the Congress, or least of all, the media—will bail you out. Even given the somewhat ambiguous legality of a "deferred resignation" offer, if you take it, it will almost certainly be enforceable, especially if you take early or 'regular' retirement. And even if you don't, you have until the end of September before any of this actually happens, and it may all be resolved by then. So, decide!
Second, no one guaranteed any of us public servants a job. Rather, our jobs are dependent on the services, both direct and indirect, that we provide our fellow citizens, and by the laws and regulations (and appropriations) that operationalize those services. And if the president or Congress—as the democratically elected representatives of our fellow citizens—conclude that they are unwilling to pay (or pay as much) for those services, our jobs may go away. That may sound harsh, but that's the way it works in a democracy, especially one with a capitalist economy. No one of us is guaranteed a job!
However, at the same time, those federal jobs that do continue to exist need to be filled by the very best people possible—people with the best skills, the best work ethic, the most accountability, and above all, the strongest public service motivation. Our country needs you. It always will, even in times like these, when it may seem otherwise. And while public service may mean something different these days (for example, new hires will probably move in and out of government several times in their careers, making a 35-year career in the federal civil service like mine an anachronism), the U.S. government still needs good people, whether it's for a few years or for many. So, if your personal circumstances permit, stay the course. We need you now more than ever!
Ron Sanders is a fellow of the National Academy of Public Administration and a retired member of the federal civil service (with more than 20 years as a member of its Senior Executive Service). Among other posts in the federal, private and academic sectors, he served as director of civilian personnel at the Defense Department, chief human resources officer for IRS, associate director of OPM, CHCO for the U.S. intelligence community, director of the University of South Florida's School of Public Affairs, vice president of Booz Allen Hamilton, and chairman of the Federal Salary Council. He is also a first-generation American, the son of a U.S. citizen and his immigrant war bride.
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