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.

The decision in Bostock v. Clayton County Georgia, 590 U.S. 644 (2020) was rendered in 2020. In that decision, the U.S. Supreme Court resolved a long-standing issue: does Title VII apply to homosexual based claims? Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. Does “sex” include same sex? Yes, said the court in Bostock. I previously talked about that decision in Bostock here.

Texas Workforce Commission, Civil Rights Division rightly noted that that decision added “gender identity” to its list of claims which are protected under the state version of Title VII. TWC added “gender identity” to its online list of protected claims. Texas state law has always followed Federal law regarding discrimination. Since, the Texas version of Title VII is based on ….. Title VII.

But, Republican state Rep. Brian Harrison does not know this area of law. Heck, he is not even a lawyer. Rep. Harrison complained that TWC had adopted some new policy. Swiftly, Harrison’s complaint reached Gov. Abbott, who is a lawyer. Within days, the lawful listing of “gender identity” was removed. Harrison claimed a “victory” for Texans. Doubtless, TWC will still accept claims based on same sex discrimination. But, the “same sex” category has been removed from its website. Uninformed persons may believe they will not be protected and, therefore, not file a complaint with TWC.

Harrison may have won. But, his uninformed, uneducated complaint was a defeat for LGBT persons. The one Texas court of appeals to address the issue agreed that the decision in Bostock did indeed provid valid guidance for Texas courts. See Tarrant County College District v Sims, 621 S.W.3d 323 (Tex.App. Dallas 2021). TWC tried to follow the law. But, Rep. Harrison, with his economics degree, disagreed. See San Antonio Express-News report for more information.

Why do folks avoid jury duty? One reason is some, probably most people are just busy. Some people can multi-task. But, one juror learned the hard way that multi-tasking while sitting on a jury has consequences. Sallie Sue Smith was told she could not work on crossword puzzles while she should be listening and watching trial. Fine, she put the puzzle down. But, later during jury deliberations, she resumed working on her cross word puzzles.

The trial concerned a man who killed the mother of his child at Home Depot in Pensacola, Florida. The jury deliberations were acrimonious. There was shouting. Sallie said she can shout, too. Ms. Smith was in the minority of members. After five hours, the judge declared a mistrial, in part because one juror was working on crossword puzzles and presumably, not paying close attention.

But, Ms. Smith said she focuses better when she is doing her puzzles. See ABA Bar Journal report here.

I previously wrote about the potential effect of Project 2025 on the private sector workforce here. But, what about the Federal workforce? Well, looking at the book’s discussion of the Federal workforce, we enter the bizarro world of right-wing politics.

Right off the bat, the book claims that today, Federal workers are not held accountable. Project 2025, p. 71. For those of us who regularly represent Federal workers, this statement is farcical. If the workers are not held accountable, there would be no need for lawyers like myself. Even if we allow for some hyperbole on the part of the book’s authors, yes, Federal workers are held accountable. It is a myth that civil service workers cannot be fired. I see in the Federal workforce the same disciplinary measures I see among private sector employees.

Fully Successful

The authors are concerned that one study found that 99% of workers are rated fully successful or above. And, only 0.3% are rated minimally successful. The authors cite a 2013 report regarding permanent Federal employees. Project 2025, p. 73, n. 15. But, that conclusion says little, so far as it goes. That same study shows that three-fourths of GS-13 to GS-15 were rated in the top two categories. That is not a surprising result. There are just not many of those high level managers at the GS-13, GS-15 level – outside of Washington, D.C. In my 30 years of representing Federal employees far from the beltway, I have never represented anyone above GS-13. The ratings decrease some as you go down the GS rating ladder. See the study the authors used here.

This is just not a crazy result. In the military, we had a similar result that as you got higher, the performance ratings were higher. Yet, we did just fine weeding out the bad apples. In many private sector jobs, they do no performance evaluations. None. The Federal sector goes well beyond the private sector in both training of its managers and in employing a viable rating system. The Heritage Foundation is digging deep to find evidence of a lack of accountability.

Disparate Impact Lawsuits

Regarding Federal employees, the authors again attack disparate impact lawsuits – as their counter-parts did regarding private sector employees. Project 2025, p. 72, 583. Disparate impact lawsuits are exceedingly rare. Disparate impact lawsuits are lawsuits that claim a policy or rule has “impacted” large groups of protected people. Such as: a rule that would prohibit males from working as Flight Attendants. That is a rule that existed once and which was clearly based on gender. Those sorts of lawsuits are very rare even among the private sector workforce. Such lawsuits are even more rare among Federal employees. Since, unlike their private sector counter-parts, Federal workforce managers receive regular, frequent training on how to avoid managerial mistakes and possible acts of discrimination.

“Careerists“

The Project 2025 book gets into the bizarro world of politics when it warns against “careerists” who “lean heavily to the Left.” The book cites no source for this over-the-top claim. The authors then claim they need new job descriptions that avoid veteran preferences and other preference categories. Project 2025, p. 80. That is just an odd statement. Veterans actually hew to the political right if anything. Simply based on my personal experience in the military for 28 years and having lived in San Antonio, Texas, a Federal workforce dominated city, Federal workers come in all flavors. In the military, we worked with Federal workers wherever we had to reserve a firing range or a training area.

Veteran Preferences

Federal workers cannot be categorized one way or the other. I would like to see a serious study, but in my experience, most are conservative – simply because so many are veterans or are family members of veterans. Indeed, if you want to hire a new civil service employee at Ft. Cavazaos, Texas or Ft. Moore, Georgia, you would be hard pressed to hire someone who was not a veteran or related to a veteran. This is just a strange claim to make – and one for which the authors cite no authority or study.

And, of course, as a veteran, I agree with veteran preferences. Veterans make wonderful employees. And, for some vets, returning from war, job searching is a monumental task. They have earned some extra respect.

Federal judges are judges for life. Pauline Newman was appointed to the Federal Circuit Court of Appeals in 1984. The court hears patent claims and customs issues. In 2023, responding to complaints by staff that Judge Newman was being abusive, the judicial council for the Federal Circuit suspended Judge Newman, saying she had shown signs of cognitive decline.

The council placed Judge Newman on a one year suspension and started to investigate her abilities. It asked her to submit to a medical exam. She refused. Dr. Aaron Filler, an attorney who has appeared in front of Judge Newman, offered to conduct an exam of Judge Newman at no cost. Dr. Filler is also a neurosurgeon.

Dr. Filler found Judge Newman to be a “super ager.” She demonstrates a mental acuity of someone 20 years younger, said the doctor. Dr. Filler measured the blood flow to her brain and he interviewed her. Dr. Filler said her “rapid efficient responses” to difficult questions indicated a very high level of cognitive ability.” He discussed the reports of abusive behavior. He said most of those reports occurred subsequent to the initiation of the investigation and could have been due to stress.

The doctor concluded:

“She engages normally and fluidly in interaction and conversation without any apparent diminishment that might be associated with age in the 10th decade as to other individuals. In this regard she presents as a ‘super-ager’ in that she does not demonstrate effects of age on cognition or demeanor comparable to many others at this age.”

See ABA Bar Journal report here.