Legal expert: Federal employee safeguards moving too slowly to protect workers

[MUSIC PLAYING] NINA MOINI: It's our top story this afternoon. Federal employees are going to court over an email telling them to list their accomplishments from the last week and a warning from Elon Musk that, if they don't respond, they could lose their jobs.

The Office of Personnel Management sent a mass email Saturday giving employees a deadline of 11:59 tonight to respond. Also on Saturday, Musk posted to X saying no response would be considered a resignation. The situation is causing confusion. And several agencies have told their staff not to respond. That's according to NPR.

Joining me with perspective on the new lawsuit is Nick Bednar, an associate professor of law at the University of Minnesota. He specializes in the executive branch of the federal government. Thanks so much for being with us, Nick.

NICK BEDNAR: Thanks for having me, Nina.

NINA MOINI: You know, lots of moving parts, lots of confusion, which has been something that people have been dealing with within the federal government in the past month or so. Could you help us to clarify or understand this part about if the federal workers do not reply and lose their jobs, as Elon Musk has threatened, is that legal, in your opinion?

NICK BEDNAR: So in my opinion, it's not.

NINA MOINI: OK.

NICK BEDNAR: So traditionally, in order for a resignation to be considered valid, it has to be voluntary. And according to the courts and the Merit Systems Protection Board, which is the agency that kind of adjudicates these personnel disputes, a voluntary resignation has to involve a choice on the part of the employee. And it has to be initiated by the employee. So this idea that not responding to this email that was sent over the weekend, in which individuals only have one business day to respond, would constitute a resignation doesn't comply with civil service laws.

NINA MOINI: And is that what the employees that are part of the lawsuit, is that what their attorneys are arguing? Or what else are their attorneys also arguing?

NICK BEDNAR: Yeah, so this lawsuit arises out of a separate incident, which is that a lot of employees who were probationary, meaning they were new hires who had worked for the federal government less than a year, had been fired over the last two weeks. And so today, these attorneys added on this additional claim that these individuals cannot be considered to have voluntarily resigned if they don't respond to this email.

NINA MOINI: OK. So and then what is the argument then on the Trump administration side of the case?

NICK BEDNAR: So I think it's a little difficult to know because we haven't wholly seen what the Trump administration will argue. And we're also seeing a lot of confusion within the executive branch and by the Trump administration appointees about what this directive actually is and whether employees should be complying with it at all.

But I think the argument that Trump administration is likely to advance is that the president, under Article II of the Constitution, has control over subordinates of the civil service. And so if the president decides that he wants to remove civil servants for failing to report their own performance, that's his prerogative. Now, that's not where the law stands today. But that's where President Trump would like to push the law with a lot of the actions he's taking right now.

NINA MOINI: And do you think that the lawsuit is likely to be successful in removing at least the threat that the employees will be fired if they don't respond? They're probably still in a bit of a limbo, but just removing that threat of, oh, gosh, I didn't respond. What's going to happen to me?

NICK BEDNAR: So unfortunately, probably not. And the reason is more procedural than it has to do with the substance or the merits of the claims. And that's in these cases we've seen thus far brought by labor unions, the courts have been pretty strong in saying that employees have to exhaust their administrative remedies before the Merit System Protections Board and the Federal Labor Relations Authority before they can go to federal court.

So if this case proceeds like those other cases we've seen, the request for a temporary restraining order is likely to be denied. And then these employees will be expected to exhaust any claims they might have before the federal agencies that handle federal employment and labor disputes before they can bring their claim again in federal court.

NINA MOINI: Yeah. And you know, Elon Musk's team has been moving quickly to try to shrink the federal workforce. And then there's potential layoffs. There's court battles going on.

And while these tactics are being deployed, life is going on. Federal workers have to probably look for new jobs or decide how they would still remain in the ones that they have. Do you think the legal system can realistically keep up with Musk's strategy? Or are we just going to be in this limbo for the foreseeable future?

NICK BEDNAR: So I think this is one of the most difficult things about the current moment we're in is that we have all of these safeguards that are in place. But these safeguards move really slowly. And they're not designed to handle situations where presidents or individuals seek to rapidly deconstruct the federal government and fire a bunch of federal employees without due process.

So in the first Trump administration, we saw a situation where the Merit System Protections Board-- again, that's the agency that adjudicates a lot of these employment disputes-- lost its quorum. And it had a backlog of about 3,500 cases. And it didn't have a quorum for five years, 2017 to 2022. And so there were these employees who, for about five years, didn't know the status of their job. And consequently, you're right. A lot of these employees are going to be forced to move on because the system can't move fast enough to restore their rights.

NINA MOINI: Can you just quickly explain what they didn't have a quorum means for people who don't understand?

NICK BEDNAR: Yeah, absolutely. So the Merit Systems Protection Board has three appointed members of who are appointed by the president and confirmed by the Senate. And if it has one or fewer members, it can't hear any cases. So it needs at least two people on that board.

And the Trump administration, last week, tried to remove one of those members. And there's another member whose term will expire in March. So it's possible by the time March rolls around that the board won't be able to hear any of these cases. And employees who have a case pending before the board won't be able to have any sort of hearing.

NINA MOINI: And then you're saying, what would happen to them then?

NICK BEDNAR: So they're stuck in limbo until the board gets a quorum back and issues a decision. And at that point, once they have a decision, they can appeal to federal court. But again, we're looking at potentially years before some of these claims get resolved. And a lot of federal employees are probably going to choose to just move on.

NINA MOINI: OK. And since you are an expert on the executive branch of government, I wanted to ask you about the Department of Governmental Efficiency, or DOGE, as it's known, headed or made, I guess, by Elon Musk. How is that part of the executive branch now? Or how does it differ from some of the federal agencies that it's trying to shrink?

NICK BEDNAR: Yeah, so it is part of the executive branch. It's specifically a unit within the executive office of the president. And the president has a lot of control over the composition of the executive office of the president. It differs from other agencies in that agencies, like the Department of Treasury, the US Agency for International Development.

A lot of the agencies in the news right now are created by statute. And DOGE and the agency that preceded it, the Digital Service, were created by an action of the president. And so it's different, in that, it doesn't have any statutory grounding. It is probably a lawful agency as an entity. But it can't quite exercise the power it thinks it has to dismantle these agencies that are grounded in statutory law.

NINA MOINI: OK. From your perspective, if the Trump administration or anybody did want to cut spending and be more efficient, what would the law permit an executive branch to do to try to, I guess, shrink these agencies as they're trying to do now?

NICK BEDNAR: Yeah, so the president actually has a lot of discretion under the civil service laws and a lot of different tools to try and shrink the size of the federal workforce. One thing the president can do is they can engage in reductions in force. And reduction in force is this process by which the agency decides it's going to eliminate certain positions. And it gives its current employees an opportunity to compete for whatever positions remain in the agency.

The other thing the executive branch or the president could do is there's a program called voluntary separation incentive payments. And the president could basically say, look, we're interested in reducing the size of our workforce. And we're willing to pay you some amount, a maximum of $25,000, if you're willing to leave your job.

And so there are tools available to the president to shrink the federal workforce. The problem is the Trump administration isn't using those tools.

NINA MOINI: All right. Nick, thank you so much. I hope you'll come back as time moves on and keep us up to speed on all of these moving parts.

NICK BEDNAR: Of course. Thank you, Nina.

NINA MOINI: Thank you. Nick Bednar is an associate professor of law at the University of Minnesota. His focus includes administrative law and the federal workforce.