On Saturday, the Office of Personnel Management (OPM) sent an email to federal employees instructing them to respond with five things they accomplished last week. Elon Musk posted that an employee’s non-response would be considered a resignation. Here’s what happened and the concerns it raises, including its clear violation of civil service protections.
What happened?
On Feb. 22, Musk—a current White House advisor, special government employee, and de facto leader of the Department of Government Efficiency (DOGE)—posted the following on X:
Consistent with President @realDonaldTrump’s instructions, all federal employees will shortly receive an email requesting to understand what they got done last week.
Failure to respond will be taken as a resignation.
Approximately two hours later, federal employees received an email from OPM with the subject line “What did you do last week?”:
Please reply to this email with approx. 5 bullets of what you accomplished last week and cc your manager.
Please do not send any classified information, links, or attachments.
Deadline is this Monday at 11:59pmEST.
The email did not repeat Musk’s threat equating a non-response to a resignation. Nor did the email provide any consequences about what would happen if employees missed the Monday evening deadline. Screenshots sent by some anonymous federal employees showed that the email was marked as “suspicious.” Other anonymous federal employees reported they had not received the email, but it was unclear whether OPM intentionally excluded these employees. What’s more, some individuals outside the executive branch reportedly received the email, including at least one federal judge and some law clerks. Some agencies have reportedly told employees to “pause on any responses” as of this writing.
Reflections of X/Twitter
The email follows a pattern of Musk borrowing tactics from the private sector in his efforts to shrink the federal workforce. Following his acquisition of Twitter in 2022, Musk instructed Twitter’s engineers to “email [him] a bullet point summary of what your code commits have achieved in the past ~6 months, along with up to 10 screenshots of the most salient lines of code.”
This is not the first OPM email to echo Musk’s takeover of Twitter. On Jan. 28, federal employees received an email with the subject line “Fork in the Road.” That email announced a “deferred resignation” program that promised to place employees on administrative leave with full pay and benefits until Sept. 30. Despite significant concerns over the program’s legality, a federal judge allowed the program to go forward, finding that employees would need to exhaust their administrative remedies with either the Federal Labor Relations Authority or the Merit Systems Protection Board before suing in federal court.
Concerns Surrounding the Most Recent Email
Is the email intended to be used for a reduction in force or other employee terminations?
The OPM email does not specify how the agency intends to use the information it collects from employees. One possibility is that OPM intends for agencies to use this data to implement Executive Order 14210. Executive Order 14210 instructs agency heads to “develop a data-driven plan, in consultation with its DOGE Team Lead, to ensure new career appointment hires are in highest-need areas.” The Director of OPM is in charge of overseeing the creation of these plans. The same executive order instructs agency heads to initiate “large-scale reductions in force (RIFs).” RIFs are governed by specific rules, which require the agency to classify employees and remove them based on their order of tenure. It is possible that agencies may use the data collected from these emails to make retention and removal decisions. Yet these emails alone would be an insufficient basis for an RIF because the process requires significantly more information about the functions performed by each employee.
More broadly, the email raises concerns about the efficacy of the Trump administration’s efforts to cut the federal workforce. Five bullet points describing one work week—a week that included a federal holiday—cannot capture the importance of the work performed by most federal employees. And it certainly cannot capture the functions of those federal employees already placed on administrative leave, who were explicitly prohibited from performing their job duties during the week in question.
In essence, it appears that the Trump administration is demanding that employees justify their positions. But to date, the administration has done a consistently poor job of determining which positions are, in fact, important. Its poor-track record is evidenced by agencies’ efforts to recall fired probationary employees after realizing they perform crucial functions, such as managing the nuclear stockpile and the power grid or those working on responses to bird flu. Meaningful reorganization of the federal workforce requires more than five bullet points; it requires a holistic evaluation of how federal programs operate.
Does an agency have the legal authority to demand that employees provide updates on their performance?
In the abstract, probably. Section 4302 of Title 5 requires agencies to develop “one of more performance appraisal systems which . . . provide for periodic appraisals of job performance of employees.” Agencies must provide a performance rating for each employee. Indeed, OPM recommends that agencies continually monitor employees during the performance period to evaluate whether employees are meeting expectations. Of course, the fact that this particular email came from OPM—and not the employing agency—suggests that this email is not actually part of any agency’s performance-management efforts.
Although the email instructs employees not to send classified information, the broad request for information from OPM has raised concerns that some employees may accidentally violate the standard procedures governing the handling of such information. Indeed, the Federal Bureau of Investigation and the Department of Defense have reportedly instructed employees to wait for further instruction before responding to the email.
Could an agency treat an employee’s failure to respond to the OPM email as a resignation?
No. The resignation of a federal employee must be voluntary. The Merit Systems Protection Board (MSPB) has stated that “[t]he touchstone of the analysis of whether a retirement or resignation is voluntary is whether the employee made an informed choice. A decision made ‘with blinders on,’ based on misinformation or lack of information, cannot be binding as a matter of fundamental fairness and due process.”
A non-response to an email—especially an email with a deadline of one business day—does not evidence a “choice.” Moreover, a resignation must be requested by the employee—not the employer. The MSPB has jurisdiction to consider whether a resignation was, in fact, voluntary. I fully anticipate that the MSPB would not classify a removal pursuant to this email as a “voluntary resignation.” Were the Board somehow to fail to do so, the federal courts would likely overturn that decision.
Moreover, classifying a non-response as a resignation seeks to evade the civil service protections for performance-based firings. The MSPB lacks jurisdiction over issues arising from voluntary resignations except for determining whether the resignation was, in fact, voluntary. Yet employees removed from their position by the agency enjoy certain due process protections. The agency must provide notice and an opportunity for the employee to respond. The employee may then challenge their removal before the MSPB. The Trump administration cannot deprive employees of their due process rights through loopholes.
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In sum, the administration’s use of private-sector tactics does not comply with federal law. Nevertheless, the administration continues to succeed at eroding morale within the federal workforce. (Which, for some, may be the point.) Resignations and layoffs will continue—whether lawful or not. Judicial intervention may come too late to reverse the damage done to state capacity. Ordinary Americans depend on that capacity to provide them with the comforts, and indeed to meet the basic needs, of modern living – from food safety to air traffic control to our national defense. Attacks on the federal civil service create a less safe and less comfortable existence for us all.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions