Things to consider when the federal government offers you your job back

Terry Gerton: There’s no shortage of continued news in the federal workforce space. But I want to talk first about a story that our Federal News Network reporters have been covering about several federal agencies that are reaching out to people who’ve been released under various terms and inviting them to come back to work for the federal government. What are you hearing?

John Hatton: Yeah, we’ve seen the same reports and information coming back, and it’s frankly not that surprising given how haphazard and rushed the process was of reducing the size of the federal workforce. So agencies could have overshot their goals with regard to reductions due to people voluntarily accepting the deferred resignation offers, and whatever their goals were may not have been well thought out to begin with. And so with the size of the federal government and with all the different functions it carries out, that there would be portions of which where they’re really in need of talent and individuals who can do the job is, I think, predictable, honestly.

Terry Gerton: Depending on the terms of any one individual separation, I use the term invite, that federal agencies are inviting them to come back, but is this really an optional decision for folks?

John Hatton: I do think it will depend on how somebody was separated or whether they were put on administrative leave or not. So if somebody took the deferred resignation offer, the terms of the offers that we saw back in the first one that was issued at the end of January, early February, said agencies retained the power to rescind the offers at any time and that you could be asked to come back to work in rare circumstances. So I haven’t seen all the specific language in some of the agency-specific deferred resignation offers, but if you are under that, then per the terms of that agreement, they could pull you back in now, so that would stop your payment through the end of the fiscal year.

Terry Gerton: And there’s a slightly different spin on it for probationary employees, where they were let go and now judges are stopping those probationary separations. What’s the situation there?

John Hatton: So there have been different cases on that with judges ordering them back to the work. I think some of those probationary employees still may be caught up in the more formal reduction in force procedures. So what the courts had said were, I think, two things in those cases. One was that these were directed by OPM or the Department of Government Efficiency and they did not have the authority to do so. And then two, the agencies did not necessarily go through the proper reduction in force procedures, like they’re starting to go through for terminating and separating non-probationary employees. So just because the initial firing of the probationary employees was ruled invalid by courts doesn’t mean they may not be caught up in further reduction in force processes.

Terry Gerton: So what is NARFE offering in terms of advice to folks who are caught up in this spin of Am I fired? Am I not? Am I called back? Am I not? How do I think about this? What are my decision spaces? How are you advising folks? This is really tough.

John Hatton: It’s very difficult, and a lot of it depends on where you are in your personal career, where you are in terms of retirement planning potentially. So some individuals are already retirement-eligible, and so that is potentially an option. So if you’re already thinking of retiring or retiring within the next couple of years and you had this deferred resignation offer, then maybe that’s something you wanted to do now. Others are being put on administrative leave and being told they’re being caught up in a RIF. They may be getting a voluntary early retirement offer. Then you have other individuals who, I think, pre-retirement eligibility, just have to think about how this plays in for their career. Do they want to try to stay on with the federal government if they possibly can? Or are they just turned off by everything that’s going on and want to find a job elsewhere? And I think that also depends on kind of what your career path is, what your occupation is. So I think people within the USAID space, for example, like the entire industry is kind of getting torn apart. And there are some reports of people — there’s some jobs going to State and people trying to get in those jobs. Other people may have scientific backgrounds that are more general, and they can go find a job elsewhere. And all the different actions being taken to federal employees may certainly be turning people off.

Terry Gerton: These are really tough and really individual decisions. I’m speaking with John Hatton. He’s the staff vice president of the National Association of Active and Retired Federal Employees. Let’s change the subject a little bit because the other big piece of news is the Schedule F policy career rule. The comment period, which was extended twice, just closed. So what are you hearing about what was submitted? What were the trends? Any news there?

John Hatton: I think the last number I saw on the comments submitted was something upwards of close to 40,000, but not all the submitted comments have been posted yet as of the last time I looked. So a lot of comments in on the rule — there were, I think, closer to 10,000 on the initial OPM rule trying to solidify the civil service framework. So obviously there’s a lot of interest. It looks like most of those comments are in opposition to the rule. NARFE submitted a formal comment. And we’re also engaged as plaintiffs in a lawsuit challenging the implementation of Schedule F per the executive order that was issued on the first day of the presidency. So fighting this in any way, shape or form that we can, including by pushing for legislative fixes as well.

Terry Gerton: What is the timeline for OPM to respond to the comments and make the next move?

John Hatton: I wish I could tell how long it takes agencies to go through their final rulemaking process and waiting for OMB and a higher review and all that. So I don’t know. I assume they’re moving forward with this in an expedited fashion. They did executive order on day one. They issued the proposed rule by the end of April. They tried to have a short public comment period of 30 days initially. I think they probably moved that back to avoid legal challenges in terms of the time — it’s not even clear that they gave enough time for comments. So I think we’ll see. I think they’re going to try to move through the process quickly. Now, are they going to do it quickly in a measured way — in a way that is actually considering all the comments, reviewing them — or do they actually have some preconceived notion? My hope would be that they take a look at all these comments, take a look at all the opposition and decide maybe this isn’t the right path forward. But that’s pretty optimistic.

Terry Gerton: Going to say, you’re not going to hold your breath for that one, are you?

John Hatton: No, I’m not. But that would be a reasonable thing to do.

Terry Gerton: Well, we’ll see. We’ll stay optimistic. Speaking of being optimistic, what are you hearing about federal benefits on the Hill?

John Hatton: Well, we’ll see. I think what we saw was a budget resolution that targeted about $50 billion in cuts. We saw a package of cuts coming out of the House Oversight and Government Reform Committee that included five particularly objectionable provisions, in NARFE’s view. That got whittled down to three by the time it got to the House floor. And some of those provisions had been changed or altered in a way that either pushed back the effective date or exempted some people subject to mandatory early retirement. As we move into the Senate, I think two different provisions remain — one is, as people leave their probationary period, they’re going to have to choose between being an at-will employee or having essentially a 5% pay cut via increased retirement contributions. That’s on top of a 4.4% retirement contribution already, so close to 10% there. That one, plus the fee for appeals to the Merit Systems Protection Board. I think there’s a chance, potentially a good chance, that those do not survive a Byrd Rule challenge, which requires that provisions do not just have a budgetary effect — the budgetary effect cannot be merely incidental to the policy. So the purpose of these is clearly to provide — to shift policy to at-will employment — and the budgetary effects, in a Byrd Rule argument, would be that is just merely incidental. The other surviving provision is to eliminate the FERS annuity supplement as of Jan. 1, 2028. The issue with that is you may have some people taking a voluntary retirement provision — their annuity supplement doesn’t kick in until at least then. So you have people retiring now under these reductions in force who are not going to get their full retirement under this provision. There’s people who are vested in a system now, who are retirement eligible now, who are having these benefits turned back. So my hope is that there’s some opposition in the Senate to those provisions. They’re looking to do something by the end of the month. There’s a stated goal of July 4 for this reconciliation bill. We’ll see if they can meet that goal, whether they can get this provision together.

Terry Gerton: By the next time we speak, we may have the answer to that question.

John Hatton: We may.