The National Labor Relations Board hears complaints regarding union members. But, it also has jurisdiction over complaints by non-union member who discuss conditions and terms of employment. Early in February, Pres. Trump fired the Chairman of the NLRB, Gwynne Wilcox. I wrote about that odd termination here. It was clearly an unlawful termination. The pertinent statute requires that board members be terminated for good cause. Well, a Judge decided that her termination violated the National Labor Relations Act. The Judge specifically pointed to Trump’s post a few weeks ago depicting himself as a king. Judge Howell said a President is not a king. See CBS news report here for more information.

In her order, Judge Howell pointed to the government’s “hyperbolic” argument that allowing checks on executive power amounted to “extraordinary intrusion” on executive power. The government’s remark is both troubling and incorrect, said the court. As the Judge rightly pointed out, the U.S. Constitution is replete with checks on executive authority. See her order here.

Prior to this termination, no president had ever terminated a member of the NLRB board. The President may be seeking to appeal this issue to the U.S. Supreme Court, so he can challenge long-time precedent regarding these semi-independent agencies.

Among co-Pres. Trump’s many firings, he also fired the Chairperson of the Merit Systems Protection Board, Cathy Harris. Ms. Harris sued and was granted a permanent injunction. The Judge wrote a lengthy opinion, finding that The President cannot fire members of the MSPB board without cause. The members of the board enjoy a prescribed term – set by statute. The President cannot change an act of Congress.

It is fortunate that Ms. Harris will return to the Board soon, because Pres. Elon has fired so many federal workers without cause that they all also enjoy appeal rights to the MSPB. See The Hill news report here. The Trump administration has lost most of the lawsuits brought against it for these unlawful firings. It makes one wonder what their plan is. The administration had to know these firings are on shaky ground. One theory is that the administration is pursuing a fringe theory known as the “Unitary Executive.” Under this view of the chief executive, the President should enjoy unfettered right to run the entire executive department as he sees fit. Congress, however, has created a great many semi-independent agencies. The MSPB is one of those semi-independent agencies. The theory is that the Trumpistas believe they can appeal these firings to the U.S. Supreme Court and prevail. We will see.

On Saturday afternoon, Pres. Musk sent an email to all or many Federal workers. His first email said all employees will receive an email soon. Failure to respond to that email will be seen as a resignation. Then came a second email asking all Federal employees to reply with a description of what they accomplished at work last week. The reply is due Monday at 11:59 p.m. Pres. Elon sent both emails Saturday afternoon. Both emails were sent short;y after co-Pres. Trump posted that Elon should become more “aggressive” with the Federal workforce.

It is exceedingly strange to send an email to all your employees on a Saturday afternoon. Too, what could Pres. Elon possibly do with that information. He will have no understanding if their stated accomplishments amount to anything or not.

Salary Employees

Most Federal workers are paid salary. So, demanding that they work on the weekend is not onerous and not necessarily violative of any laws. If your boss calls you or texts you on the weekend, he is in effect asking you to work. For hourly employees, that employee would need to be paid for that time. But, for salaried employees, this is why they are paid salary – so they can work a little extra on the weekend.

But, to email something so trivial, so amorphous to hundreds or thousands of employees on the weekend is just strange.. This sort of act suggests Pres. Elon – and by extension Co-Pres. Trump – seek to inflict some cruelty on Federal employees. Placing hundreds or thousands of employees in fear for their jobs for no apparent job need is cruel. Pres. Elon and – by extension co-Pres. Trump – really do appear to be trying to force Federal workers to quit. The is the strangest conduct. See The Hill news report here for more information.

Implied Consent

And, could an employer infer resignation from a lack of response to an email? I have been practicing some years. I have never heard of a scenario in which any agreement could ever be inferred from lack of a response. It is a truism in contract law that silence does not equal consent. It would be a strange world indeed in which we could make contracts based on silence. Could Jerry Jones tell Dak Prescott that this year, he will pay Dak only $10 for the entire year – unless he replies by 11:59 p.m.?

Indeed, can we even make agreements based on one email? What if a Federal employee emails a response to Pres. Elon, but it is not received? Not every email reaches its destination. Many workers do not check their emails over the weekend. How can Pres. Elon be sure every Federal worker will see the email in time? In the end, cruelty seems to be the point. We have never had a co-President before. And, we have never had a President or co-President who seek to deliberately cause fear and panic among his employees.

Affirmative Act

The good folks at Gilbert Employment Law say that under current MSPB precedent, an Agency cannot impose a resignation on an employee. There must be some affirmative act the employee that indicates an intent to resign. “Under precedent, a resignation requires an affirmative act by the employee expressing their desire to resign, communicated to a responsible official (that is, the employee’s supervisor).” See The Gilbert Employment blog on this same subject here.

The war on Federal workers continues. After the “Fork in the Road” email, the Musk/Trump next step has been to fire probationary employees. One estimate holds that there are 200,000 workers in their first year of Federal employment, making them probation employees. Many termination emails have been issued. A regular Federal employee can appeal any termination to the Merit Systems Protection Board. The MSPB will hear appeals for terminations that are not based on good reasons.

“Partisan Political Reasons”

But, what about probationary employees? They have some protections as well. The non-profit known as Protecting Democracy has put together a paper explaining the rights available to probationary Federal workers. Federal workers on probationary status may not be fired due to “partisan political reasons” or marital status. Such an appeal must be filed within 30 days of the firing. Many of the terminations so far are based on alleged poor performance. If that allegation can be rebutted and if the probationary employee can show partisan political reasons for the firing, they may have some success. Given the overtly political nature of all these terminations, there may be good basis for an appeal.

The challenge for the employer will be to show these terminations were due to some financial need. At least so far, no such financial or budgetary motivation has been articulated. And, many of the termination emails actually allege poor job performance, not budgetary needs.

A probationary employee can also pursue the normal complaint process with the Office of Special Counsel available to all Federal employees. S/he can also seek remedies through any collective bargaining agreement. First Amendment protections might be available if a worker was fired for perceived political expression. See the Protect Democracy website here for more information.

No lawsuit or appeal will pay the bills. But, it is important that federal workers understand their legal position.

Pres. Trump issued an executive Order which forbids “illegal DEI.” Executive orders only have binding, legal effect for the Executive branch of the U.S. government. But, EO’s often have general influence throughout American society. What is or what might be “illegal DEI”? That phrase likely stems from the U.S. Supreme Court’s decision in Students for Fair Admission v. Harvard College, 600 U.S. 181 (2023). In that decision, the Supremes found affirmative action policies at universities to violate the Equal Protection clause of the 14th Amendment to the U.S. Constitution. The Equal Protection clause forbids discrimination based on race or ethnic origin in matters of contract. Matters of contract include anything regarding written agreements such as school admissions, employment, etc.

Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment. Title VII applies to race and national origin, and also to religion, age, gender, and disability. The SFA decision followed the decision in Grutter v. Bollinger, 539 U.S. 306 (2003), by just 20 years. The Grutter decision specifically approved of racial preferences, so long as they had some time limit. That is, racial preferences could not last forever. And, cautioned Grutter, racial preferences could never become racial quotas. The Grutter decision spoke approvingly of the benefits for a racially diverse student body. The SFA decision discussed Grutter, but did not overrule it. It is still good law.

Racial Preferences

So, if SFA did not deviate from approval of racial preferences, what did it do? The SFA decision said the racial preferences used by Harvard and University North Carolina were too attenuated from its stated goal of training future leaders in society. There must be a tighter connection between racial preferences and the goals of those preferences. In layman’s language, that means if you use racial preferences, you need to have a very good and clear reason.

So, now we have a new administration that is determined to rid the world of Diversity Equity and Inclusion. DEI was the answer, sort of, to affirmative action deficiencies. Title VII still exists. The Equal Protection clause has not changed. Title VII expressly forbids hiring based on race and the other protected categories. A person cannot hire a white person based on the color of his skin, just as an employer cannot hire a black person based on the color of his skin.

DEI

DEI can be anything an employer wishes it to be. But, if DEI means hiring criteria, then that would violate Title VII. In the interests of helping disadvantaged communities, some companies have established internships, mentor programs and fellowships that expressly favor minorities. Programs such as those might violate Title VII. They very likely would violate Pres. Trump’s EO.

As Justice Thomas noted in a concurrence to SFA, merely “helping” disadvantaged minorities inevitably harms the majority population. Justice Thomas also believes that Grutter is effectively overruled by the SFA decision. Justice Gorsuch also notes that allowing preferences or a “plus” inherently means treating a minority person differently than other populations. So, concludes Gorsuch, that amounts to discrimination.

One Concurrence by One Justice

So, if Grutter is overruled, no one explicitly says so. A concurrence by one judge is not law. A “plus” for race or some other category is still lawful. But, the new EO still says what it says. Some experts say that any program that is exclusive is what the administration would say is illegal. As one such expert, Craig E. Lee, partner at the law firm, K&L Gates, described the situation. So, internships, mentorships, and fellowships that are aimed at minorities are out. Edward Blum, one of the attorneys for the plaintiff in the SFA case has now been contacting large law firms to broaden their programs which had focused on minorities. He clearly believes some DEI programs are no longer lawful. New York Times, Feb 11, 2025.

But, DEI, as practiced by the Federal government does not include fellowships and internships. DEI, as practiced by the Federal government, is strictly outreach. They market employment opportunities to minority groups, such as historically black colleges. Does that sort of DEI also violate the new EO? Perhaps. Because sometimes, the law is not what the law actually is. But, what the new administration says it is. See the SFA decision here.

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.