The Office of Special Counsel has not done much for me or my clients in the past. But, it is always there as a backstop. The OSC receives and investigates whistleblower claims submitted by Federal workers. They are typically overwhelmed with too many complaints and not enough investigators. Which is probably why they were not helpful to my clients in the past.

But, most Federal workers are aware of the office. The office has done much to prevent fraud, waste and abuse in Federal government. But, because the office protects whistleblowers, Pres. Trump wants to protect himself from the OSC. So, he fired the person who headed the office, Hampton Dillinger. Mr. Dillinger was still in his first year of a five year term.

Merit Systems Protection Board

Like many of co-Pres. Trump’s other firings, the head of the OSC may only be fired for cause. Mr. Dillinger has solid grounds for appeal. But, Dillinger has not bothered with an appeal to the MSPB. He filed suit seeking a temporary restraining order on this unlawful termination. Good for him. But, unfortunately, this probably means a super busy office will lack direction for a good many months. Lawsuits typically last months, if not years.

When even the OSC becomes a political football, all Federal workers are in peril. See The Hill news report here for more information.

Note: late on Feb. 10, 2025, Judge Amy Herman Jackson issued a stay allowing Mr. Dellinger to remain in his position until a permanent hearing can be held.

Upon assuming office, Pres. Trump has been on a tear. He fired a member of the NLRB commission and its general counsel, both appointed by former Pres. Biden. Trunp fired Gwynne Wilcox, saying she was “far left” with a “radical record.” Long-time practice had been that the Democrat and Republican members of the Board would remain on the Board until their terms expired – even after a change in administration. That practice led to Boards that were relatively bipartisan. This is the first Board member to ever be terminated from the Board prior to expiration of their terms – since the creation of the NLRB in 1935.

Ms. Wilcox has indicated she will pursue all legal remedies after her removal. Those legal avenues likely will include re-visiting the 1935 Supreme Court decision in Humphrey’s Executor v. United States., 295 U.S. 602.

Federal Trade Commission

That decision stablished that Congress can prevent a president from removing a member of the Federal Trade Commission without cause. In effect, the decision removed the FTC from terminations based solely on politics. The National Labor Relations Act established the NLRB. That statue provides that members of the NLRB can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 

But, some conservative lawyers believe that some Supreme Court justices have indicated interest in re-visiting the decision in Humphrey’s Executor. One argument is that the statute creating the FTC requires a political balance. That same requirement is not found in the NLRA. And, in 2020, the Supreme Court ruled in Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 207, that Congress cannot impose a cause requirement for removing the head of the Consumer Financial Protection Bureau. That court distinguished Humphrey’s Executor on the basis that the CFPB was headed by a single director. While, the FTC was governed by a board.

Even so, the administration cited Seila in its letter firing Ms. Wilcox. Ms. Wilcox has filed suit to seek reinstatement. It was nice of Pres. Trump to make it so clear that she was fired due to politics. No one can say the Trump administration does not provide plenty of work for lawyers.

It starts with Project 2025. Right off the bat, the Project 2025 book claims Federal workers are not held accountable. I previously wrote about that propaganda book here. As any Federal worker knows, all employees of the U.S. government receive an evaluation every year. Many private employers cannot make the same claim. I just concluded a lawsuit against a major employer in San Antonio with hundreds of employees who have never conducted a job evaluation.

That sort of stereotypical view of Federal workers is now manifested in the form of one Elon Musk, owner extraordinaire and overall rich guy. Pres. Musk views Federal workers as the adversary. According to the New York Times, Mr. Musk said this about Federal workers, “Very few in the bureaucracy actually work the weekend, so it’s like the opposing team just leaves the field for 2 days!”

Every Federal worker takes an oath to the U.S. Constitution. There are some bad Federal employees. But, in my experience, not many. They are evaluated every year. A bad worker becomes bad only if indulged by the boss. Since supervisors change with some regularity, there is just not a lot of indulgence. The only team opposing Federal workers is the team found in China, Russia and North Korea, maybe also in Iran.

Traveling HR Team

The deferred resignation offer – known as the “Fork in the Road” email – reflects Pres. Musk’s lack of respect for Federal workers. With no warning and little explanation, Mr. Musk sent an email to every Federal employee regarding a life-changing sort of decision. I wrote about the “Fork in the Road” email here.

It is very unusual in the Federal workforce for such a major decision to receive so little support. When I was called to active duty in 2003, we had about 500 Reservists suddenly on active duty. Someone had to explain to us about Tri-Care health insurance and TSP retirement accounts. Ft. Hood sent down two persons, probably from OPM, to my unit in Houston. They drove about four hours to present a one hour block of instruction on our benefits and answer questions – with powerpoint slides and hard copy handouts. They knew, with so many Reservists coming from so many parts of Texas, with a diverse civilian jobs, there would be plenty of questions. The entire briefing actually took about 3 hours with all the questions.

That is a typical Federal response to a major change in fringe benefits. That sort of extra effort reflects a respect for workers. That sort of respect seeks to keep employees feeling like the employer cares. Employees who feel valued always perform better. But, now under Pres. Musk and co-Pres. Trump, all some 2 million employees received last week was a one page email – with some FAQ’s. That email was thrown together at the last minute. So, one huge question remains unresolved even today: who is eligible for this “Fork in the Road” offer? Every agency has some mission-critical positions, which cannot remain unfilled for any length of time. Agencies are still working on which positions are mission critical.

Contrary to what Pres. Musk and co-Pres. Trump believe, the first measure of any governmental agency is not efficiency, but effectiveness. Can a given agency deliver the services it promises? Without those mission-critical workers, any agency would fall short. As of Feb. 3, two or three agencies had identified which positions are eligible for the offer. But, a great many still have not, even now days into this offer.

Gloating

Pres. Musk also gloated about what he had done to another agency:

“We spent the weekend feeding USAID into the wood chipper. Could have gone to some great parties. Did that instead.”

New York Times, Feb. 5, 2025, p. A12. On behalf of Federal workers, I would like to express my regret that Pres. Musk missed some great parties. But, let me take this opportunity to remind him that he was speaking cavalierly about some 10,000 employees and their families. I hope Pres. Musk can find some time in the near future to attend some of those “great parties.” I would remind him that anyone who takes an oath to the U.S. Constitution, gives up higher pay in the private sector, who often do in fact work weekends to provide services to you and myself, are the “opposing team” only if you do not support said Constitution. After all, its Pres. Musk who owes $1.4 billion to a Chinese bank, not Federal workers.

Starlink

And, now we have some indication for why Pres. Musk holds such hatred for Federal workers. The IG for USAID was investigating USAID’s oversight of the public-private partnership between Musk’s Starling and the Ukraine government. See Gizmodo report here, Mr. Musk did in fact describe USAID as “evil.” of course, it is illegal for Pres. Musk to perform government work with such an obvious conflict of interest. But, if co-Pres. Trump will not enforce the law, no one else is interested in doing so at present.

For no apparent reason, other than naked politics, Pres. Trump has fired two of the three Democrat appointed members of the EEOC Commission. The Commission decides EEOC policies and guidance. It is fairly normal for the EEOC to lack enough members for a quorum when a new administration first starts. But, in removing two pf the three Democrat appointed members, Trump creates the opportunity to create a Republican majority. That ensures he can enact employer oriented policies. For decades, the five member board has operated with Republican appointed and Democrat appointed members. Based on timing, at any given time, the Republicans could be in a majority, or the Democrats. The result was a relatively bipartisan board.

Pres. Trump did the same with the National Labor Relations Board. The NLRB oversees labor unions. In firing the Democrat appointed members, the President also created the opportunity to stack the NLRB with Republicans. He then makes both labor agencies much more friendly to employers and not so friendly to workers. See The Hill news report here for more information. He clearly seeks to inject politics into bodies that have been relatively bipartisan for decades.

One theory advanced in the New York Times on Jan. 30, 2025 is that the Trump administration is seeking litigation over Executive power to fire these employees. The theory known as the “unitary executive theory” holds that even when Congress establishes these semi-independent agencies, the President retains power to override Congressional intent and fire who he pleases. Republicans in the Reagan administration first advanced the unitary executive theory. But, the Trump acolytes seem to have taken it to heart.

Pres. Trump’s approach clearly injects an increased level of politics for two bodies that were designed to be relatively bipartisan. In so doing, both bodies will lose considerable credibility.

Millions of Federal workers have received an email with the subject “Fork in the Road.” That is the same subject heading for a similar email sent to all Twitter employees after Elon Musk first purchased Twitter. This new version of “Fork in the Road” offers Federal workers an opportunity to work from home for eight months, receive their normal pay, and then resign in September. Or, does it? The email was sent by OPM, the Human Resource agency for Federal workers. But, OPM is its own agency. It is possible, perhaps probable that an offer from OPM would not be binding for employees of other agencies. If an employee of DOD, FTA, etc. accepts this offer, it may not be binding. Since DOD and the FTA did not make the offer.

No Dollar Amount

Another problem with the offer is no dollar amount is specified. The email states that employees who accept this offer will “retain all pay and benefits.” It does not explain which “pay and benefits” or whose “pay and benefits.” That is a problem. Musk’s email to Twitter employees resulted in many lawsuits, because he did not pay them everything they believed they were entitled to. More binding language would be “all normal and benefits to which you are entitled.” Or words to that effect. Not identifying which pay and benefits are retained renders the offer very tenuous. The email appears to avoid using more specific language.

Key Positions

Another problem is no agency, as far as I know, has specifically stated which positions are eligible for this offer. Contrary to what Musk and Trump believe, Federal workers are not inter-changeable. Some positions are more critical than others. We just had a horrific Army helicopter crash. At times like this, any agency would rely on the higher level Casualty Notification officials. You can expect pushback from agencies if key persons opt for this deferred resignation at a critical time. The email states that some positions may be excepted by individual agencies.

Deadline

The deadline is odd. Any Federal worker accepting this offer must do so by Feb. 6, 2025. That appears to be an arbitrary date not connected to any actual need. Why such a short deadline? The current budget runs through March 6. How is this deferred resignation program funded? So far, there is no known budget for allowing potentially thousands of Federal workers to stop working, while still receiving pay and benefits. This just not how the Federal government as an employer rolls. Where are the power point presentations explaining this deferred resignation? Where is the POC for additional information or questions? The whole program appears to be thrown together at the last minute, with little understanding of the Federal workforce.

Trust

Perhaps the biggest problem with this email is its timing. It arrives just one week into a new administration. A new administration that routinely disparages Federal workers. The Project 2025 makes many outlandish claims about Federal workers. See my prior post about Project 2025 and Federal workers here. The “Fork in the Road” email has invested zero effort into educating and preparing a large workforce for a life-changing decision. Having grown up in a military city and having served in the military for 28 years, its is odd to my ears hearing this routine disdain for Federal workers. It strikes me as irrational. That disrespect and this lack of preparation for such a major change suggests to me the new administration does not respect Federal workers. This is just an odd way to treat a valued workforce.

Any negtiation – and this is a sort of negotiation – require some minimal level of trust. This administration with its focus on reducing the Federal workforce with a meat cleaver has earned no trust.

The good folks at Gilbert Law firm in Maryland have also posted a blog post about this offer. They point out how the offer conflicts with two statutes regarding unpaid leave and voluntary separation. See that blog post here.

Pig in a Poke

So if a worker accepts this offer, they would then need to sign an actual agreement. So far, the two agreements I have read or read about require the employee to waive all claims against the government. So, for example, if the government makes an error regarding the amount of your retirement benefits, you could not file a legal action about that error. And, the final agreement also has a stipulation that the government can “rescind” the agreement. That ability to rescind makes the contract almost certainly illusory – meaning it is not binding on the employer. So, in essence, this “Fork in the Road” offer is really just a pig in a poke.

His name is Joe. Joe cleans tables at a coffee bar I frequent. Joe has limited functioning. Whatever his diagnosis is, he could be on the severe end of the autism spectrum. Joe does a great job at keeping the tables clean and performing “hey you” tasks. Even though Joe is tall and big enough, they never ask him to carry the heavy urns of hot coffee. I suspect carrying hot coffee might be too much for Joe. Carrying large, hot urns of coffee involves some matters of judgment that are probably too much for Joe. Joe does his job well, but he is always looking to others for affirmation. He is never sure if he is doing his job correctly. He is equally hesitant in his social encounters – except hello and taking about the San Antonio Spurs. But, even regarding the Spurs, he always ask a person if his, Joe’s understanding of a recent game is correct.

DEI Hires

I think of Joe when I hear Pres. Trump blaming DEI hires for the plane crash in Washington, D.C. In his opening remarks, Pres. Trump clearly suggested the crash was due to DEI hires at the airport. He said Obama and Biden both lowered their standards for Air Traffic Controllers (ATC). He said you have to be very intelligent to be an ATC. He pointed to a specific notice somewhere in which the Biden administration said they would hire the most “severely intellectual disabled” person for the FAA. See CBS news report here.

Federal Hiring Process

I know that is nonsense. I have represented enough Federal workers and myself worked for the Federal government to know no one person can lower standards for Federal employment. It is just not possible. The person who writes the job description is often different from the person who posts job openings who is different from the hiring official for said job. Pres. Trump was stereotyping the Federal workforce. But, he was also stereotyping folks like Joe and DEI. DEI does not mean hiring persons who are incapable of performing a given job duty. On the contrary, the Americans with Disabilities Act is clear that no job duty may be changed to accommodate a disability. That just cannot happen. Joe does his cleaning tables job very well. But, he could never be hired to land airplanes.

I worked for Disability Rights of Texas for many years. The guiding principle there is that persons with disabilities should be allowed to do as much work as they are capable. Joe is working at his maximum capacity. He clearly enjoys his work. His presence brings a certain something to the coffee place. The mere presence of a “Joe” brings good will that cannot be measured.

Common Sense

When asked why he thinks a DEI hire had some connection to the crash, Pres. Trump answered simply, “Because I have common sense, okay?” He may have common sense, but he has zero sense or experience with persons with disabilities. Joe certainly could not land a plane. But, a good many persons with varying types of impairments absolutely could land a plane. Pres. Trump betrays bis deeply held bias when he asserts that a person with a disability could not serve as an Air Traffic Controller. The current President lowered the level of discourse considerably with his unkind, ignorant comments. As we believed at Disability Rights of Texas and as the ADA provides, it depends on the individual. It is necessarily a case-by case analysis regarding what a given job applicant can do. The President demeaned every person with a disability when he relies on his own innate prejudices.

Every time a new President is elected, the Department of Justice reviews its civil rights lawsuits one at a time, to see which cases it will continue with. This process has always been performed on a case-by-case basis. Until now. The new Trump administration has frozen *all” current or pending new cases. The Memo issued by Chad Mizelle, the new DOJ Chief of Staff, halts all ongoing litigation, including any settlements. The measure suggests the recent consent decrees entered into by DOJ regarding the Louisville, Minneapolis and Memphis police departments could be rescinded.

This is an unprecedented move, says Darwin Hewitt, president of the Lawyers’ Committee for Civil Rights Under the Law. This freeze represents more than just a change in philosophy and emphasis. This move suggests the Civil Rights office of DOJ will simply abdicate its responsibility to protect civl rights, added Mr. Hewitt. On the campaign trial, Mr. Trump indicated his support for police officers who sometimes must be “extraordinarily rough” to stop crime.This appears to be part of Trump’s desire to protexct plicemen. But, of course, who protects the public from abusive police officers, if not DOJ? See ABA Bar Journal for more information here.

There was a lot of talk about Project 2025 in 2024. Now it is the year 2025. Project 2025, the book was published by the Heritage Foundation. Many of the authors were major players in the first Trump administration. Many of the book’s authors have been now appointed to the new Trump administration. Now, Mr. Trump has appointed a new Chairman of the Equal Employment Opportunity Commission. Andrea Lucas, a member of the Board is the new Chairperson. She has pledged to “root out” unlawful DEI-inspired race and sex discrimination.

Ms. Lucas is talking about discrimination against white males. It is not too uncommon for employees to endure anti-white discrimination, but is far from common. In 20 years, I have received maybe two phone calls alleging discrimination against a white person. That Ms. Lucas wants to focus on issues that are not issues suggests more pressing sorts of discrimination will receive decreased emphasis.

As far as the Project 2025 book itself, it suffers from some major problems. It is a very political sort of book. The 900 page book discusses the EEOC at length. The book can be downloaded from this site here.

EEO-1 Form

The book has a lengthy section on suggested changes to the Department of Labor. The book starts by calling on the EEOC to stop collecting the EEO-1 form. This form is required of large employers. It requires employers to set forth the racial make-up of their workforce and address attempts to increase minority hiring. It is a harmless form, which has become very routine. The Project 2025 book says the EEO-1 form “could” lead to racial quotas. The form “crudely” categorizes people into racial groups. Those are just silly comments. The EEO-1 has been around since the 1970’s or longer. What problems it might hold ought to have been revealed long before now.

The book calls for the EEOC to “disclaim” its “regulatory pretensions.” That assertion is nonsensical. The EEOC issues regulations to help explain and enforce the various anti-discrimination statutes. There is no “pretension” involved. Statutes never address all situations. It is up to regulations to fill in some of those gaps.

The Project 2025 The book makes an odd comment that “woke” goals have entered the private sector and American labor. At this point, the book clearly wanders around into politics. Title VII of the Civil Rights Act of 1964 was once a “woke” goal. But, today, in 2025, how do we define “woke”? The book makes no attempt to define the word. Neither does it offer specific proposals based on perceived “woke” goals which have slipped unseen into our work force.

PTO

The book does make an interesting proposal, that Department of Labor and other agencies allow Paid Time Off (PTO), also known as “compensatory time.” PTO is used often in state and city agencies. PTO means a person who works more than 40 hours in one week would be credited with an hour of time which s/he can use as unpaid leave. PTO is offered in lieu if overtime pay. The book wants private sector employees to have the option of choosing PTO or overtime. PTO violates the FLSA requirement for overtime pay. But, if the FLSA could be amended, many workers would appreciate access to PTO. Some labor unions have negotiated PTO policies.

Independent Contractor

Perhaps, the biggest change would be a return to the definition of independent contractor (IC) implemented by the Trump administration. All the current definitions of IC look at several factors. I wrote about the different tests for IC here. Most of those tests look at factors such as:

  • Who supervises the work
  • Who trains the workers
  • Who sets the hours for the work
  • Who provides the tools
  • Who hires the work
  • How integral to the overall business is the work being performed
  • And so on

There are anywhere from 7 to 20 factors, depending on which test we use. But, the Trump Department of Labor boiled the test down to two factors: 1) the nature and degree of control of the work, and 2) the worker’s opportunity for profit and loss. The Trump definition made it much easier to classify gig workers as Independent Contractors. It is simply unrealistic to expect a definition for IC to rely on only two factors. Our labor force is much to complicated for such a simplistic test.

In employment lawsuits, the nub of the matter is often the alleged pretext. The employer argues the personnel decisions as completely normal and free of discriminatory bias. The plaintiff argues the opposite, that the employer’s decision does not withstand scrutiny. In Texas Tech Univ. Health Sciences Center v. Flores, No. 22-0940 (Tex. Dec. 31, 2024), the higher court addressed that very issue, pretext. Loretta Flores worked for Texas Tech University for over 20 years, working her way up the ladder from temporary medical secretary. She filed her first EEOC charge in 2015 when she was passed over for promotion by then new Pres. Richard Lange.

Flores I

That first charge resulted in the decision in Texas Tech Univ. Health Science Center v. Flores, 612 S.W. 2d 299 (Tex. 2020) – known as Flores I. In that first decision, the Texas Supreme Court disregarded evidence that Pres. Lange’s alleged rationale for choosing a younger person was sketchy. The higher court overturned a denial of Defendant’s Plea to the Jurisdiction. A plea to jurisdiction essentially argues that the plaintiff lacks sufficient evidence to go to a jury. When in doubt, the courts are supposed to deny such a plea and let the jury decide. But, in the first Flores decision, the Texas Supreme Court weighed the evidence and found it lacking. Anytime a court has to weigh evidence, there is sufficient question that ought to warrant a jury trial.

Direct Evidence

The same result obtains in the second Flores case. In the second case, Ms. Flores was again passed over for promotion for a much younger employee. This time, Pres. Lange even flat asked Ms. Flores about her age during his interview. He then told her she did not have to answer the question. Raising the issue of age suggests ageist concerns. To many judges, that question itself would amount to direct evidence of discriminatory bias.

Ms. Flores did not answer the question. Yet, the Texas Supreme Court excused Lange’s question, since he told her she did not have to answer. …. Yes, the Texas Supreme Court now allows discrimination, so long as the supervisor claims he does not actually want a response.

The problem with the court’s reasoning is that Flores’ appeal is based on a plea to jurisdiction. When the facts are close, the court is supposed to let the jury decide the case. But, the activist Texas Supreme Court prefers to weigh evidence. There was other evidence of pretext. Pres. Lange articulated reasons for his preferred candidate based on skills not really mentioned in the job description. But, the Supreme Court pointed to an alleged incident several years prior in which Flores had problems with a budget. Justice Lehrmann said this was evidence of poor performance. Yet, this alleged poor performance was never the subject of formal counseling or a performance evaluation. Again, the evidence is close enough that a jury should decide.

The court even noted the guidance in Reeves v. Sanderson Plumbing Prods., 530 U.S. 147, 149 (2000), that based on the failure of the employer’s supposed reason, a jury may infer that unlawful discrimination was the true reason. An employer is presumed to know the reason why it makes a decision. So, if there are possible issues of pretext, there ought to be a jury trial to resolve those issues. Despite all this, the court weighed the evidence and found it wanting. See the decision in Texas Tech Univ. Health Sciences Center v. Flores here.

I first wrote about attacks on judges in 2011 and 2012. Newt Gingrich, the former Speaker of the U.S. House, even joined in on attacks on Judge Fred Biery in San Antonio. That was in 2011 and 2012. See those posts here. Those attacks have continued. Candidate and later Pres. Trump has now raised attacks on judges to an art form. Doing so is dangerous. There is a thin reed of civility that protects state and federal judges. Chief Justice Roberts has now issued his own warning against threats and intimidation toward the judiciary.

Chief Justice Roberts tells us that threats against judges have risen 100 fold in the last 10 years. Law enforcement officers around the country must now devote significant resources to protecting judges and investigating those threats – resources which would be better used to catch violent criminals. Too, accusing judges of political bias undermines their credibility, notes the Justice.

Politics

True, but during the Trump administration, all Federal judges were picked from the Federalist Society. Politics was injected into their nomination from the get-go. I suppose Justice Roberts prefers to avoid that elephant in the room.

The Chief Justice also notes the increasing public comments by politicians that judicial opinions should be ignored. The Justice’s comments are remarkable since he authored the decision that gave sitting Presidents virtually complete immunity for official acts. Pres. Trump will certainly feel emboldened to disregard which ever laws and edicts he disfavors.

Still, before 2011, threats against judges were relatively rare. The public discourse has changed dramatically. Making very public accusations of political bias used to be rare. See the ABA Bar Journal report for more information regarding Chief Justice Roberts’ warning.