The Fork in the Road

Last month, the Trump Administration offered about two million federal employees a buyout program. This offer, titled “Fork in the Road,” came from an email sent by the Office of Personnel Management (OPM), and would allow federal employees to resign yet be paid their full salary until September 30, 2025.

The initial email sent by OPM outlined four pillars that redefined employment in the federal government. First, federal employees are no longer allowed to work remotely. Second, OPM is changing federal work-performance culture to “insist on excellence at every level,” and will “address” those who do not meet the new standards. Third, there will be large-scale downsizing of the federal workforce, including by furloughing or reclassifying many employees to at-will status. Finally, OPM is enforcing enhanced standards of conduct to ensure that employees are “reliable, loyal and trustworthy.”

After outlining these four pillars, OPM stated that it was grateful for any employees who wish to continue working under these new guidelines, but explained that no positions are guaranteed to be safe from elimination. To provide a way out for employees who did not want to stay for this realignment, OPM offered the deferred resignation program, but required acceptance before February 6, 2025.

This email immediately sparked controversy. Federal unions condemned the offer as coercion. Many federal employees believed it to be a trick. Even Senator Tim Kaine (D-Va.) denounced the offer and President Trump, stating that “if you accept that offer and resign, he’ll stiff you.”

Much of this concern stems from when Elon Musk, who now heads the Department of Government Efficiency (DOGE), bought Twitter in 2022 and sent an almost identical email to all Twitter employees. The email, also titled “Fork in the Road,” offered a three-month severance package to any Twitter employees who wished to resign. Many employees who took the offer still have not received their full promised severance package.

Many legal scholars have raised concerns about the implementation of the deferred resignation program. Their concerns primarily focus on whether OPM has the authority to offer this program.

At first glance, the “Fork in the Road” appears to be a voluntary separation incentive payment (VSIP), which are authorized by the Federal Workforce Restructuring Act of 1994. VSIPs, however, are capped at $25,000 per person and require each agency head to report exactly which positions will be eliminated. One expert estimates that the OPM plan would exceed this cap as applied to most federal workers. Furthermore, there have not been any reports submitted by agency heads outlining positions to be eliminated.

OPM instead characterizes the deferred-resignation program as putting employees on paid administrative leave for eight months, with each individual’s resignation coming into effect on September 30, 2025. Scholars, however, identify several legal issues with this approach.

First, scholars note that Congress has so far only authorized government salary through March 14, but the deferred resignation program promises payment through September 30. The Anti-Deficiency Act prohibits agencies from obligating funds that Congress has not yet appropriated.

OPM argues that the Anti-Deficiency Act does not apply because the employees who take the Fork are not being promised compensation from future funding, but are rather only receiving their normal salary while on paid administrative leave.

The second concern legal scholars raise is that a federal law on administrative leave limits federal employees to 10 business days of administrative leave in each calendar year, which the “Fork in the Road” would outpace significantly.

OPM argues that the 10-day limit does not apply because OPM issued binding regulations earlier in January 2025 that restricted the 10-day limit to management-initiated actions that put an employee on administrative leave for the purpose of conducting an investigation.

Based on legal concerns, several labor unions that represent federal employees—the American Federation of Government Employees, the American Federation of State, County, and Municipal Employees, and the National Association of Government Employees—sued OPM on February 5 claiming that the offer violated federal law.

The next day—the initial deadline for accepting the “Fork in the Road”—Judge George A. O’Toole Jr. of the U.S. District Court for the District of Massachusetts paused the deadline pending his decision on the legality of the matter.

OPM informed federal employees that the deferred resignation offer would remain available while the judge decided, but that the deadline would pass as soon as legally allowed.

Judge O’Toole decided on February 12 that the unions lacked standing to sue. He did not weigh in on the legality of the offer.

OPM closed the deadline within hours of the judge’s decision. Roughly 75,000 federal employees had taken the offer by that time.

The American Foundation of Government Employees says that it will continue to fight against the deferred resignation program despite this setback, as the legality of the program has still not been determined. For now, the “Fork in the Road” will apparently proceed as OPM laid out in its initial email.