Federal Workers facing a massive Elon Musk DOGE-driven reorganization may feel disoriented by inconsistent and conflicting directions and email demands from officials (sometimes from private email accounts). Facing so-called “offers” for deferred resignations, voluntary exit incentives, and warnings of job consolidations while at the same time being ordered to return to “in-office” work – in many cases without desks or office space – federal workers with whom I have spoken feel overwhelmed and uncertain.
While not a huge percentage of my current practice, a number of clients work in the federal service, and I am proud to provide advice and counsel to help them navigate the “shifting sands.”
This is not legal advice.* While no one should act on the guidance offered by random blog postings (and that goes especially for this blog), I thought it helpful to share some ruminations that may help federal workers during these difficult times. In that spirit:
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*I ran this Blog through artificial intelligence software, and Al suggested I add the following disclaimer. Here it is:
Legal Disclaimer
This blog post is for informational purposes only and does not constitute legal advice. The content provided is general in nature and should not be relied upon as a substitute for professional legal counsel.
- No attorney-client relationship: Reading this post does not create an attorney-client relationship between you and the author of this website.
- Not tailored advice: The information presented here may not be applicable to your specific situation. Legal issues are complex and fact-dependent. Always consult with a qualified attorney licensed in your jurisdiction for personalized legal advice.
- No guarantee: While we strive for accuracy, we make no representations or warranties regarding the completeness, accuracy, reliability, or suitability of this information for any purpose.
- Use at your own risk: Any actions you take based on the information in this post are at your own risk. The author and website disclaim all liability for any losses or damages arising from your use of or reliance on this content.
If you require legal assistance, please seek the services of a competent legal professional in your area.
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Guidance for Federal Workers
Here are some general thoughts federal workers may wish to consider. If you are concerned about your situation, seek legal advice from qualified counsel.
Play the Long Game
You may have seen just last week that one of Elon Musk’s SpaceX unmanned rockets exploded after launch, and its debris rained down over the coast. A hallmark of Silicon Valley’s management philosophy has been “break it fast” and “fix it faster.” I suspect we will see the same thing happen with the dismantling of government programs. We have already seen reports of terminated employees being immediately recalled when government officials realized what those workers did. It would not shock me to see temporary job eliminations reversed in the coming months as the folks who are tasked with providing government services come to appreciate the difficult jobs government workers perform better. Job reductions made for “show” may be reversed by court orders, Congressional action, or practical considerations. As I like to say, “Now is not the time to panic – we have plenty of time to panic.”
Know Your Rights
Federal workers who are represented by labor organizations have rights under the Federal Labor Management Relations Act and collective bargaining agreements. These workers should make sure they confer with labor representatives, get a copy of the applicable bargaining agreements, and keep informed about the status of discussions between the Union and the Agency. Moreover, all federal employees have rights under the Federal Privacy Act. Upon request, government agencies must provide employees with a copy of their personnel file so the worker can make sure the file only contains appropriate and accurate records. If personnel files contain information revealing protected information (such as an employee’s political party, constitutionally protected activities, or other First Amendment activities), those records can and should be removed. In addition, agencies must keep a record of who had access to that employee’s file and, upon request, must provide a copy of that record. Failure to do so triggers an award of attorneys’ fees to the prevailing federal worker. While the White House is exempt from the Privacy Act, when White House Officials access an agency’s personnel files, that access must be documented and disclosed upon request. Here is a link to an excellent website that provides information about the Privacy Act sample requests for personnel files and a record of access to the personnel file. (https://kkc.com/freedom-of-information-act-resources/) Your agency likely also has a protocol available for requesting your personnel file.
A Word on Evidence Preservation
Federal workers facing job elimination or termination should consider taking steps to preserve evidence of any directions received and their responses. Make sure all steps taken in this regard comply with agency data and confidentiality requirements. Federal workers should not send emails to non-government email addresses as that could result in the disclosure of confidential information (and create cause for discipline).
Some workers may be tempted to use a personal cell phone to take a photograph of any emails sent or received. Once again, caution should be exercised to make sure the worker is not saving confidential government information in unsecured files or systems.
Separately, workers may wish to create a Word file on a personal computer. Use it to memorialize daily events and responses. Try to keep as much data and information as possible. Write it as if you are writing a memorandum to your attorney. You can make the first entry a “Recap” entry that summarizes everything that has happened thus far. I found such “recap” summaries to be very useful in helping witnesses prepare for depositions and testimony. Once again, do not memorialize confidential information, as doing so could expose the employee to discipline or even criminal prosecution.
Do Not Resign If You Can Hang On
The decision to “stay” or “go” is a very personal decision. For many years, I worked in the Federal Service and learned first-hand the dedication and commitment most of my colleagues had for public service. We are better off because of your service. Additionally, even if your job is eliminated by workforce reductions, federal workers may have the right to bump into other open positions or to be recalled to positions down the road. (See “Play the Long Game” above.) Resigning your federal job may result in a waiver of any such rights. Do so only in consultation with qualified legal counsel.
Thank you for your service!