FOR IMMEDIATE RELEASE
February 4, 2025
CONTACT
Peter Jenkins (202) 265-4189 pjenkins@peer.org
Most Sidelined Federal Diversity Staff and Others Should Be Allowed Back to Work
OPM’s “Deferred Resignation” Administrative Leave Plan Is a Sham
Washington, DC — Federal government agencies must allow most of their shunted-aside Diversity, Equity, and Inclusion (DEI) staff to return to active work status on Thursday, February 6, according to a letter sent to the Office of Personnel Management (OPM) and House and Senate oversight committees. Otherwise, the agencies will be in violation of the Administrative Leave Act of 2016 (ALA), which succinctly states, with no exceptions: “During any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days.”
OPM’s “Guidance Memorandum” of January 21 implemented one of President Trump’s first actions. It aimed at eliminating all DEI staff government-wide, stating that effective the next day, January 22, all such staff must be placed on “administrative leave effective immediately.” The 10 work days allowed under the ALA will lapse effective Thursday, February 6. According to PEER’s letter, all agencies then must allow their DEI employees who were placed on leave then to return to active work status until a proposed adverse action against them, such as removal or else a Reduction in Force (RIF), is effectuated, unless they are formally placed on investigative or notice leave. However, the legality of a RIF applied only to those staffers is highly doubtful. Under federal personnel law, numerous procedural steps are required to complete either an adverse action or a RIF; it is very unlikely the agencies have taken all those steps since January 22.
“Any DEI employee who is left on administrative leave by their agency, and who is willing to fight back, starting this Thursday, should consider explicitly pointing out the illegality of their continued leave, in writing, to their supervisors and to the Office of Special Counsel,” said Peter Jenkins, PEER’s Senior Counsel. “They also should, if they wish, state they are willing to return to work; that may help them in their future legal cases challenging the vicious, arbitrary actions taken against them at President Trump’s bidding.”
Many Environmental Justice (EJ) staff have also been placed on administrative leave, as well as other employees government-wide. The same 10-day limit arguments also applies to them.
The PEER letter to OPM also points out the flimsy nature of the conditioned offer of 8 months of paid administrative leave for federal employees who accept OPM’s highly controversial “deferred resignation” offer. Agencies that actually gave 8 months of paid leave would be in gross violation of the ALA’s 10-day limit. Future interventions by a federal court or Congress could simply invalidate OPM’s paid leave offer. And, per OPM’s guidance, agencies can choose not to give administrative leave in the first place – or they can revoke it.
“Ultimately, the courts, administrative law judges, and Congress must act as a check against this Trump-Musk-driven lawlessness,” Jenkins continued. “Until then, federal agencies that blindly follow OPM’s dictates are on notice that they’re violating the Administrative Leave Act.”
###
Background: After the 10 work days limit on administrative leave ends, civil servants may be placed on investigative leave under the ALA, but only if serious misconduct is alleged against them that requires investigation, which does not apply to the DEI staffers. Notice leave can be applied to an individual when the agency has already decided to take an adverse personnel action against them. But agencies cannot apply either investigative or notice leave to any individual unless the agency first determines they would pose a threat to other employees or their presence would otherwise jeopardize the agency’s functioning. Such findings are implausible for the DEI employees.
Read the Administrative Leave Act of 2016:
See OPM’s Guidance Regarding DEI/EJ staff:
- Initial Guidance Regarding DEIA Executive Orders
- Memorandum to Heads and Acting Heads of Departments and Agencies: Guidance Regarding RIFs of DEIA Offices