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This is not in any way intended to constitute legal advice specific to your situation, but merely to point out some of the issues that I see with some of these drafts that have come out of these Agencies and what employees may want to consider when considering whether the “fork in the road” option makes sense for them.

As many other writers have pointed out, this is not a “buyout.” This is simply allowing somebody to purportedly take administrative leave for a few months before resigning from their position.

Certainly in a few cases, I can completely understand why somebody would want to take this agreement. For example, if somebody were going to retire or resign anyways, that might be a reason to consider taking this agreement.

But for the vast majority of federal employees out there, this does not present a reasonable path forward. Many of the individuals whom I’ve represented over the years have job skills that are highly specialized in government fields and simply do not exist elsewhere or do not exist in a way that those job skills are transferable at the compensation levels that federal agencies are willing to pay.

The short deadlines and the lack of clarity in the terms that would ultimately be utilized in any final agreement give me huge cause for concern that the federal government is not negotiating in good faith and that it follows through on all of these commitments, particularly when some of these commitments require congressional funding that may or may not continue to appear.

Situation as it Currently Stands

I’ve heard from a number of federal employees who have received emails initially from DOGE and now are receiving drafts of purported agreements that are not yet final for them to sign to be able to move forward with the so-called buyout. I have yet to see any final agreements that have come from any individuals within the federal workforce. And so any information provided below should be taken with a significant grain of salt.

Text of a Draft DOGE Agreement

Here are the terms that have been passed around from at least one Agency and that may or may not look like any of the final terms of any such deal that OPM and the Agencies are offering:

This agreement is between [AGENCY] and the Employee identified below

WHEREAS, on or about January 28, 2025, OPM circulated a memorandum to all [AGENCY] employees (Fork in the Road Memo) offering them a voluntary deferred resignation option. The offer allows those employees who accept the offer by February 6, 2025 to retain all pay and benefits and exempts them from all applicable in-person work requirements until September 30, 2025, or earlier if they choose to accelerate the resignation date for any reason (Deferred Resignation Program); and

WHEREAS, [AGENCY] has received Employee’s voluntary request to be included in the Deferred Resignation Program; and

WHEREAS, [AGENCY] accepts Employee’s request to be included in the Deferred Resignation Program; and

WHEREAS, the parties wish to express the terms and conditions of the agreement between the parties concerning Employee’s participation in the Deferred Resignation Program.

WHEREFORE, the parties hereto agree as follows:

1. Employee is accepted into the Deferred Resignation
2. Employee agrees to continue working through February 28, 2025, in an effort to ensure a smooth transition of Employee’s duties, responsibilities and work assignments to other Employee is exempt from all in-person work requirements. Employee agrees to turn in all [AGENCY] equipment and property on or before February 28, 2025, as directed by Employee’s supervisor.
3. Employee shall be placed on paid administrative leave no later than March 1, 2025. Employee shall remain on paid administrative leave up through and including September 30, 2025, or such earlier date on which Employee may choose to resign or otherwise separate from federal service (deferred resignation period). During the deferred resignation period, [AGENCY] shall continue to pay Employee’s current salary and Employee shall continue to retain and receive all benefits of Employee’s federal employment, including but not limited to TSP contributions, health, dental, vision and/or any other similar benefits, with [AGENCY] making the government’s contribution. Employee will continue to accrue annual and sick leave during the deferred resignation period. Employee will receive retirement service credit during the deferred resignation period. If Employee becomes eligible for a within-grade increase during the deferred resignation period, [AGENCY] shall process the within-grade increase and Employee shall receive the associated salary increase.
4. Employee shall not be expected to work during the deferred resignation period except in rare circumstances as determined by [AGENCY].
5. Employee agrees that Employee’s effective resignation date from [AGENCY], and separation from federal service, shall be September 30, 2025. Employee, however, may resign from the federal service on any date prior to September 30, [AGENCY] shall not take steps to terminate Employee’s employment with the federal service prior to September 30, 2025, except where Employee is convicted of a felony crime that would render Employee ineligible for Federal employment.
6. Employee will receive a lump sum payment of accrued annual leave in accordance with 5 CFR part 550 upon separation from service.
7. Nothing in this agreement prevents Employee from retiring from federal service at any time if Employee is eligible to do so under the applicable provisions of CSRS or FERS. If Employee is eligible and elects to retire before September 30, 2025, Employee’s retirement election shall override any benefits that would be available to Employee under this agreement after the effective date of Employee’s retirement.
8. Employee may accept non-federal employment during the deferred resignation period provided it does not violate the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635, or the Supplemental Standards of Ethical Conduct for Employees of the Department of Justice at 5 C.F.R. Part 3801.
9. By signing this agreement, the parties acknowledge that they have entered the agreement knowingly, voluntarily, and free from improper influence, coercion, or Employee understands that this agreement cannot be rescinded, except in the sole discretion of the [AGENCY HEAD], which shall not be subject to review at the Merit Systems Protection Board or otherwise.
10. Employee acknowledges that [AGENCY], in conjunction with all other federal departments, agencies and units, will immediately rely on the terms of this agreement in consolidating and reassigning roles and otherwise taking steps to reform the agency workforce. Consequently, Employee understands that this agreement is final and Employee’s decision to resign effective September 30, 2025, unless Employee resigns or retires earlier as set forth above, is final. [AGENCY] shall comply with all terms of this agreement even if Employee’s position is eliminated or reassigned prior to September 30, 2025. Employee shall not be subject to furlough, termination, reduction –in force or layoff as a result of an OPM or federal government reorganization or reduction –in force. Employee agrees to cooperate with steps taken by [AGENCY] (such as reassignment to a different component) to exempt Employee from any reduction in force.
11. If there is a lapse in appropriations during the term of this agreement that requires Employee to be placed on furlough status, Employee shall be placed on furlough status during the lapse. Once the lapse is over, Employee shall be taken off furlough and shall receive back pay under the Government Employee Fair Treatment Act of 2019.
12. Employee forever waives, and will not pursue through any judicial, administrative, or other process, any action against [AGENCY] that is based on, arising from, or related to Employee’s employment at [AGENCY] or the deferred resignation offer, including any and all claims that were or could have been brought concerning said matters. Employee unconditionally releases [AGENCY] and its present and former employees, officers, agents, representatives, and all persons acting by, through, or in concert with any of those individuals, either in their official or individual capacities, from any and all liability based on, arising from, or relating to the matters that Employee may have against them, including any and all claims that were or could have been brought. Consistent with applicable law, Employee similarly waives any claim that could be brought on Employee’s behalf by another entity, including Employee’s labor union.
13. [AGENCY] agrees to waive any debt owed by Employee to [AGENCY] pursuant to a recruitment incentive, student loan repayment, or other service [AGENCY] also agrees to waive any remaining service requirements from taking paid parental leave.
14. Should Employee become subject to military orders during the deferred resignation period, then any laws, rules, or other guidance applicable to the Employee as a servicemember that are inconsistent with provisions of this agreement shall supersede the inconsistent terms of this agreement.

Thoughts

Below are my thoughts on this preliminary version of the agreement. This should not be in any way considered legal advice.

If you have questions about how this might affect your rights based on your specific situation at your agency, you should consult with legal counsel before signing anything, and certainly get advice about a final version of any agreement offered to you..

Funding for Positions

A major concern involves the funding for these positions. Since the federal government is operating under a continuing resolution, there’s uncertainty about future funding. This raises questions about what would happen if Congress refuses to fund positions for employees who have signed these agreements but are not performing work.

The agreement states that, in case of furlough, the furloughed employees will be paid according to existing federal statutory law. However, Congress can change these laws at any time. The agreement as drafted above doesn’t address how employees would be compensated if Congress eliminates funding for those who have signed the agreement and been furloughed.

While this remains Congress’s decision to make, it certainly undermines confidence in any guarantees supposedly provided by signing this agreement with your Agency.

Rehiring / Transfer

Based on the draft agreement’s language, there appears to be no restriction on the Agency rehiring an employee after resignation, or any limitation on transferring between agencies during this period. Since the agreement is specifically between the employee and their current Agency, it does not appear to interfere with future employment at a different Agency.

Constructive Discharge Claims

Some employees might be considering accepting this agreement in order to avoid having to continue to work with management that has placed them in an intolerable situation. Generally, when management places an individual in an intolerable situation, usually in an effort to coerce them into quitting, that can be a violation of due process rights and be a basis for a claim of discrimination. This is generally called “constructive discharge,” meaning that it is a discharge in all but name.

A constructive discharge occurs when an employee feels that his circumstances are so intolerable that he can no longer continue to work in the position that he is in. This is a highly technical claim that can be made both under the discrimination laws and under the civil service laws, on different bases.

Based on the terms of the proposed agreement above, constructive discharge claims would arguably not be viable since the agreement requires employees to waive all current claims against the Agencies. If an employee feels forced into signing the agreement because of a lack of reasonable alternatives, there is very little hope of undoing the agreement based on claims of coercion, etc.

Withdrawal of Resignation

The terms of this agreement would generally prevent an employee from being able to withdraw the resignation at a later date if the employee changes their mind about whether to go forward with this agreement.

The Code of Federal Regulation provides that even after an employee resigns, they can request to withdraw that resignation. But, “An agency may decline a request to withdraw a resignation before its effective date only when the agency has a valid reason and explains that reason to the employee.” 5 C.F.R. § 715.202.

The fact that somebody assigned one of these agreements would almost certainly present a valid reason not to permit the employee to withdraw an earlier resignation. The language in the agreement foreshadows this precise situation, where it states: “Employee understands that this agreement cannot be rescinded, except in the sole discretion of the [AGENCY HEAD], which shall not be subject to review at the Merit Systems Protection Board or otherwise.”

Nevertheless, there may be reasons why the agreement could be rescinded in the future with the consent of the Agency head, but one would have to imagine that it would be in exceedingly narrow circumstances.

Missing ADEA-OWBPA Language

For employees over 40, specific legal provisions protect them from employer overreach when settlement agreements are involved. These laws require that employees must have at least 21 days to review any agreement before they must sign it or forfeit their right to sign. Additionally, even after signing, employees have seven days to revoke their signature.

The failure to include these terms for somebody who is over 40 may result in that agreement being voidable by the employee who signed it—meaning that if the employee signed it without this provision, they could elect at a later time whether to live with the agreement or to ask a court to restore the circumstances to what they would have been if they had never signed the agreement at all. From the Agency’s perspective, this is particularly concerning since it appears most people who sign these agreements might later have the option simply to void them.

I suspect that any final version of such an agreement would include these terms for those individuals who would qualify, but the lack of inclusion of a term necessary for probably the majority of the federal workforce does not indicate that this was a well thought-through plan.

Issues of Future Discrimination

I, and many others I’m sure, have an issue with the way this agreement purports to limit somebody’s ability to bring claims of discrimination that have not yet occurred or accrued.

The Agreement states, in part:

Employee forever waives, and will not pursue through any judicial, administrative, or other process, any action against [AGENCY] that is based on, arising from, or related to Employee’s employment at [AGENCY] or the deferred resignation offer, including any and all claims that were or could have been brought concerning said matters.

This seems to cover future events, as those would be claims that would “arise[e] from … Employee’s employment at [AGENCY]”.

Title VII and other anti-discrimination laws have been interpreted to prohibit employers from requiring employees to waive their rights against future discrimination.

Typically, this means that any discrimination or other type of claim that the employee could have brought, up until the date that their signature goes on this document or on the agreement, could be resolved through a settlement. However, allowing employers to require waivers of future discrimination claims would effectively let them circumvent anti-discrimination laws entirely.

This is something that likely could be remedied in future versions of this agreement, but at this point it remains to be seen how this administration plans to deal with potential issues of discrimination that might arise in circumstances in the future.

Another option is that the Trump administration might respond that the fact that no work is being expected alleviates the concerns with any of these issues. Nevertheless, the terms do include that agencies can force anyone who signs these agreements to perform work for an unspecified amount of time, even if it says this would only happen in “rare circumstances”.

Your Decision

As I have stated previously, this is my review of a, or these are my thoughts on a preliminary version of the Trump administration, so-called buyout agreement. Whether it makes sense for any individual to take this buyout agreement would depend on their particular circumstances that are simply way beyond the scope of this short blog post to be able to cover.

If you need guidance on evaluating your options given these circumstances—especially considering the Trump administration’s tight deadlines—consult an attorney experienced in federal civil service and EEO laws to discuss your specific situation.

I have been advising employees on settlement agreements since 2011. If you’re considering signing one of these agreements, I can help you analyze the rights you are giving up and your options.