Labor & Employment Law Daily Wrap Up, AGENCY NEWS—Federal staffers get a brief reprieve from federal court in ‘fork in the road’ decision, (Feb 7, 2025)
Organizations Mentioned:American Federation of Government Employees | U.S. Equal Employment Opportunity Commission
By Brandi O. Brown, J.D.
Various reports indicate that as many as 50,000 federal staffers may have already taken the offer.
In litigation that started with a complaint filed on February 4, 2025, a federal district court in Massachusetts yesterday reportedly granted a limited temporary restraining order preventing the Trump Administration from implementing its “fork in the road” deferred resignation program and suspended yesterday’s midnight deadline for federal workers to respond. Merits arguments on the motion for a temporary restraining order are scheduled to recommence on Monday, February 10, 2025.
OPM confirmation. The OPM website confirms that, “[i]n compliance with an order issued today by the District Court of Massachusetts granting a request to stay the deadline for the Deferred Resignation Program, the deadline for federal employees to accept the program is being extended to Monday, February 10, at 11:59pmET.” OPM was required by the court to provide confirmation of its compliance with the court’s order.
“We are pleased the court temporarily paused this deadline while arguments are heard about the legality of the deferred resignation program. We continue to believe this program violates the law, and we will continue to aggressively defend our members’ rights,” said American Federation of Government Employees National President Everett Kelley.
OPM continues “reforming.” In the meantime, OPM continues to target federal workers. Yesterday, the Acting Director issued another memorandum, this time instructing all agencies to submit certain data regarding their performance management plans and policies “no later than Friday, March 7, 2025.” The data sets being required include data about individual employees meeting certain characteristics and data regarding any impediments to employee separation or “meaningful distinctions” based on performance.
Less than “fully successful” employees. First, the data request requires identification of “[a]ll employees who received less than a ‘fully successful’ performance rating in the past three years” and seeks related information about each of those employees, including: (1) their name, job title, pay plan, series, grade, agency, component, and duty station; (2) whether that employee is under or successfully completed a performance improvement plan within the last 12 months; (3) whether the agency has already proposed and issued a decision under Chapter 43 or 75, or equivalent procedures, and the outcome of any such decision; and (4) whether the action is currently appealed or challenged and under what procedures (e.g., U.S. Merit Systems Protection Board, grievance-arbitration, U.S. Equal Employment Opportunity Commission, etc.), and any outcome.
Impediments. The data requested of the agencies also includes OPM regulations, agency policies, or CBA terms applicable to the agency that would “impede” either “agency performance plans from making meaningful distinctions based on relative employee performance” or “the agency’s ability to swiftly separate low-performing employees.”
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