Separating truth from fiction on the “fork in the road”

Civil servants deserve to make life-changing decisions with accurate information and without coercion

Dear civil servant,

This week it got worse.

You were already being asked to perform your critical work amid the chaos of the firings, transfers, telework and remote work changes, RIFs, spending freezes, requests for lists of probationary employees, and other efforts to demean you and interfere with your work. Now you’re doing that and being asked to consider the “Fork in the Road” email: an offer of questionable legality — accompanied by thinly-veiled threats about what things will be like if you don’t leave — under a coercively-short timeline. As you work through this, you’re also holding the fact that after a career of helping the U.S. government play by the rules — and doing so yourself, scrupulously abiding by ethics rules and document security regulations — you no longer have faith in its promises.

You don’t deserve this. What you do deserve is to make important decisions with accurate information, free from coercion, under a reasonable timeline. Our goal today is to offer some trustworthy information, ways of thinking about this big decision, and resources to learn more as you consider your options. To be clear, we’re not offering legal advice here or telling you what to do, just offering analysis and information that you can use.

What’s the “Fork”?

On January 28, 2025, most federal employees received an email titled “Fork in the Road” that purported to offer a sort of “deferred resignation” whereby employees could continue to be paid for about six months if they agreed to stop working. This is what some call an “exploding offer”: If not accepted by February 6, the offer would no longer be on the table, and the email suggested those who stayed may be risking being laid off or having their employment protections stripped from them. The details of the offer were murky and have kept changing, and questions were immediately raised about its legality. Could this thing hold up?

Since the initial email, OPM has put up an additional FAQ page with some limited amount of additional information — some of questionable veracity. This Sunday evening, OPM sent out additional “FAQs” to federal employees that try to respond to some of the criticisms of the offer. Then on Monday —three days before the looming deadline — OPM sent out the contract they now want employees to sign with their agency to formally accept the Fork offer.

The contract dropped at least four significant surprises:

• Federal employees who accept the “offer” actually do have to work through the end of the month (paragraph 2);

• Agency heads can unilaterally rescind (as in, cancel) the agreement, without any process or appeal — raising the question of whether the government is really agreeing to anything at all (paragraph 9);

• Employees who sign have to agree to a strikingly broad and arguably unlawful liability waiver. Folks tend not to care much about liability waivers because most people assume they’ll never sue, but here’s why it matters: If the government knows you can’t hold them accountable by suing in response to mistreatment or abuse, that removes a big incentive to treat people fairly. And it can put accepting employees in an even more vulnerable position vis-a-vis the government (paragraph 12); and

• That waiver section is so broad that it raises real questions about whether the government will argue that employees can’t even ask a court or tribunal to enforce this contract if the government ignores it (paragraph 12).

To put it mildly: questions remain.

Fact or fiction?

When making an important decision, most people consider all the facts. But what happens when an offer like the “Fork” email asserts information that seems unreliable? People cannot make good decisions without good information. Below, we highlight some of the misinformation in the Fork email and try to set the record straight. We want to acknowledge, however, that we are in truly unprecedented territory here. As we do our best to provide clarity, there are many questions for which we simply do not have answers.

Is this thing legal? Is it enforceable?

For the fork offer to be legal and enforceable, a few things need to be true: The program needs to be authorized by law; it needs to be funded; it needs to not violate any other laws; and there needs to be a means for holding the government accountable if it tries to renege on the agreement.

• Is the Fork authorized by law? Not to our knowledge. While federal law does authorize agencies to offer voluntary separation incentives payments (known as VSIPS), the Fork offer doesn’t appear to comply with, or invoke, that law. Insofar as the administration is purporting to put all signatories on extended administrative leave until September 30, there are open questions about whether a court would find that the offer is authorized by the Administrative Leave Act, which appears to limit administrative leave to 10 work days per calendar year. Federal unions and Senators have also warned that they are not aware of any law authorizing OPM to make this offer. You can compare the Fork in the Road email to actual government buyout letters here.

• Is the program funded? Not necessarily. The government is currently funded through a continuing resolution that expires in March. Yes, it may be true that employees who accept the Fork offer may be furloughed, and in that sense they may be entitled to the same backpay as employees who did not accept the Fork offer. But what OPM has not addressed is the more basic funding risk: Congress is in charge of spending — not agencies. And Congress could just decide not to fund salaries for employees who have accepted deferred resignation.

• Does the program violate any other laws? Quite possibly. Multiple commentators have raised questions about whether the Fork violates the Anti-Deficiency Act, which states that "no officer or employee of the government may create or authorize an obligation in excess of the funds available, or in advance of appropriations unless otherwise authorized by law." As discussed above, the Fork offers to fund federal employees months beyond when the actual government is funded. And one former cabinet secretary raised questions about OPM’s promise to fund salaries of other agencies’ employees, stating that no agency “is authorized by Congress to move money from one agency or department to another without Congress’s approval.” As discussed above, the broad waiver provision may violate federal law.

• Can the government be held accountable if it tries to renege on the agreement? The waiver provision seems to say “no.” As we discuss above and below, the waiver provision seems to say that no employee can hold the government accountable if it tries to renege on the agreement or if it tries to subject employees on federal leave to other consequences for having accepted the agreement. Even before the new contract was announced, Civil Service Strong observed, “Elon Musk offered buyouts to Twitter employees in November 2022, and then broke that promise shortly thereafter. Given the lack of authority in federal laws and regulations for this unprecedented offer, it is hard to know whether the offer can or will be fulfilled.”

What would federal employees be giving up? And why does that matter?

We were really struck by paragraph 12 in the contract that agencies sent out on February 3. It’s worth pausing and reading that language. Here it is; we bolded some sections for emphasis:

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.

Wow. This language purports to waive all of an employee’s legal rights vis-a-vis anyone who was ever associated with their agency. Not only that — it also purports to waive a union’s rights, or another organization’s rights (like a nonprofit employee membership organization) to sue. Not incidentally, on January 29, AFGE had warned there may be a "basis for a grievance or unfair labor practice charge [arising out of the Fork communications] alleging, among other things, a bypass of the Union with respect to communications about the Program directly to employees."

If no one can sue the government for its misconduct towards civil servants, how can the government be held accountable? How can things get better?

Finally, there are some federal laws — those that are meant to protect workers, including from unfair treatment — that have provisions saying that potential claims can’t be waived. Future analysis may suggest that this Fork offer conflicts with those laws. But it can be costly and stressful to figure that out in court.

(Trying to) understand the terms of the Fork offer

As others have pointed out, the terms of this offer are unclear, and OPM’s various statements on the matter have sometimes conflicted.

For example, OPM’s FAQs pose the question, “Am I expected to work at my government job during the deferred resignation period?” and answers it with a simple “No.” But the Fork email itself says employees must “assist” their “employing agency with completing reasonable and customary tasks and processes to facilitate [their] departure,” and these terms are wholly undefined. And now, the Proposed Contract has the exact opposite answer: Yes! For the rest of February.

As another example: OPM’s FAQ reads, “We encourage you to find a job in the private sector as soon as you would like to do so.” But OPM’s guidance memo has more hedges: “Employing agencies should assess what restrictions, if any, exist for employees who have resigned but remain employed (including on administrative leave) by their employing agency.” That’s because, as NPR notes, “Many agencies have ethics rules that require prior approval. Those rules still apply to employees who are furloughed, according to the U.S. Office of Government Ethics.” The Proposed Contract, in Paragraph 8, puts a number of restrictions on the original “go ahead and take other work” promise, rightfully pointing out that there are a number of ethical restrictions that could limit federal employees’ actual ability to do this.

There’s also the question of whether an employee can be fired after accepting the Fork offer. The February 3 contract says that “[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.” But OPM, the president, or another agency (for example, if a small agency gets folded into a bigger one) might still try to claim the right to terminate the signatory’s federal service.

And then there’s the question of whether employees who thought they accepted the original offer, which was offered by OPM, are operating under its terms or under the new one, which comes from their agency.

Inconsistencies like this — no less the waiver provision and the administration’s clearly-expressed disregard for other laws protecting public servants and for public service generally (see FAQ #2) — make it hard to feel confident that promises made will be promises kept. As the Washington Post’s personal finance columnist put it: “This reads like a scam.”

With information dripping out every few days, who knows when the next email will land, modifying the offer that is on the table. What we do know is that contracts like this ordinarily take time to carefully review, and your employer has greatly restricted your ability to make a considered decision about whether to agree.

Setting the record straight: Correcting coercive misinformation in the Fork email

If you felt pressured to resign while reading the Fork email, you weren’t alone. In addition to an oddly short timeline for making a decision — an age-old tactic of high-pressure sales environments, used car dealerships, and unsavory characters who operate outside the law — there were veiled threats of layoffs, loyalty tests, and more. But what’s worse is that many of those threats were based on bad facts or ignored legal realities. And some were just… untrue. Below, we correct some of the misinformation.

• Employment protections: The Fork offer included a threat of termination or that jobs would be eliminated, while also trying to assure employees they would be “treated with dignity” and their rights respected. The targeted firings of many career employees call that into question, as do the firings of those who stand up to the administration’s unlawful directives. The administration has asserted Trump “has the power to fire anyone within the executive branch that he wishes to.”

  • What’s the truth? You. Have. Rights. The administration cannot create a civil service of at-will loyalists simply by stating it is so. Since the very early days of this country and continuing into more modern times, Congress has granted civil servants protections from politically-motivated firings and other adverse actions. This administration’s blatant disregard for the actual law can and will be challenged.

• Stripping of career civil servants employment protections: The “Fork” email warned that big changes were afoot, including “reclassification to at-will status for a substantial number of federal employees.” Can they really just do that?

  • What’s the truth? The Trump Administration is not three weeks old, but it is already facing three lawsuits (1, 2, 3) that challenge Trump’s plan to strip the protections meant to ensure a nonpartisan and merits-based civil service away from federal employees. The “Fork” offer speaks as if the Trump Administration can do whatever it wants to federal employees without any checks. Many organizations are asking courts to stop these illegal acts, and more will follow.

• Telework: The “Fork” offer is framed largely around a telework lie: that a “substantial majority of federal employees . . . have been working remotely.”

  • What’s the truth? About 50% of federal employees aren’t even telework-eligible because of the nature of their duties, and the federal employees who may telework perform the majority of their work in-person. What’s more, studies show that on those occasions when federal employees do telework, they are more productive and better serve the American people.

• Productivity of federal employees: The FAQ section on OPM’s web page about this offer includes an unnecessary dig at federal civil servants: “The way to greater American prosperity is encouraging people to move from lower productivity jobs in the public sector to higher productivity jobs in the private sector.”

  • What’s the truth? OK, this might not be coercive misinformation in the same category as the other misstatements, but we can’t just let it stand unchallenged. Civil servants do amazing, world-changing, life-saving work (Even more examples here, here, and here). And you certainly aren’t rewarded with big bonuses or stock options. You create American prosperity and deserve gratitude. Thank you.

Where can I read more? You can find analyses of these questions at Lawfare, Just Security, Government Executive, the Washington Post, Civil Service Strong, NPR, and AFGE.

Resources for learning more about your rights

• The Partnership for Public Service has a “federal employee explainer” webinar series. Upcoming topics include, “What if my employment status changes?” “What are my rights as an employee?” “What are my whistleblower rights?” and “How might my benefits be affected.” You can learn more and RSVP here.

• Justice Connection is a new organization that was founded to support DOJ employees as they navigate this difficult period. You can read more about the organization here.

• An essay at Just Security on Federal Employee Rights: What Probationary Employees Need to Know.

• ACLU’s guide on federal employees’ First Amendment rights.

• The Government Accountability Project’s discussion of the rights of employees to refuse to take illegal orders. There are an increasing number of public examples of civil servants upholding their oaths of office and saying “no” to unlawful requests. Other employees are surely doing the same thing behind closed doors.

• Our previous letters (#1 and #2) in this series.

Relevant reading

• Jim Fallows’ essay on “a real-time sample of how it sounds when unheralded public employees, whose names the general public will never know, do their work with unflappable competence, knowing that others’ lives are at stake.”

• Pew Research Center’s “What the data says about federal workers” provides important insight into the composition of the federal workforce:

  • “Fewer than a fifth” of federal employees work in the Washington DC metropolitan area (est. 449,500).

  • The Department of Veterans Affairs employs the largest number of federal employees (est. 486,000 people).

  • 16% of the federal workforce (the single largest occupancy) are in “health-related fields” (nursing, hospital administration, etc.).

• Survey: Most feds say OPM’s resignation offer too uncertain to accept

• Still Here, by Langston Hughes

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Whether to stay or leave federal service is a hard decision. Against the backdrop of the unprecedented lawlessness and callousness of those in charge, all the more so. For those who leave: thank you for your service. And for those who stay and continue to hold tight to their oaths: thank you for continuing to offer us hope. We see you standing up for what is right. We know that you are one of the last bulwarks against even more rampant abuses of the government we love. Thank you.

This publication should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Protect Democracy. This publication also contains hypertext links to information created and maintained by other entities. Protect Democracy does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.