BUYOUT RESTRICTIONS
The Department may offer Voluntary Separation Incentive Payments (VSIP) of up to $25,000 to eligible employees when authorized by the Office of Personnel Management (OPM), in consultation with the Office of Management and Budget, pursuant to 5 U.S.C. 3521 et. seq. and its implementing regulations at 5 C.F.R. 576.
The statute requires repayment of the entire amount of the VSIP if the recipient "accepts any employment for compensation with the Government of the United States" within five years after the date of separation. This means that for a period of five years, such an employee may not accept any form of Federal employment, including short-term or part-time employment or as a consultant. The definition of Federal employment under this law “includes employment under a personal services contract (or other direct contract) with the United States Government (other than an entity in the legislative branch).”
A “personal services contract” is “characterized by the employer-employee relationship it creates between the Government and the contractor's personnel.” 48 C.F.R. 37.104. The key question in analyzing whether a contract is a personal services contract is always, “Will the Government exercise relatively continuous supervision and control over the contractor personnel performing the contract?" 48 C.F.R. 37.104(c)(2). In making the case-by-case determination of a personal services contract, the regulation directs the agency to consider certain factors, including whether such employee is performing the private-sector job on Federal premises or using Federal equipment, but the issue of Federal supervision is the key issue.
Thus, for a period of five years, a Federal employee who accepts the VSIP may not accept employment with a Federal contractor, including a DOE support contractor or national laboratory contractor, where the duties of the private-sector position will place the employee under the direct supervision of a Federal employee. If the employee accepts Federal employment before that time, she must repay the gross amount of the VSIP before her first day of reemployment. For example, if an employee receives a $25,000 VSIP, taking home $18,000 after taxes and withholdings, the employee must repay the entire $25,000 before reporting to work at the Department or the new agency.
OPM is authorized to waive the repayment of the VSIP at the request of the Secretary of Energy, in very limited circumstances. To qualify, the individual must possess unique abilities and be the only qualified applicant available for the position. In the case of an emergency involving a direct threat to life or property, the individual must have skills directly related to resolving the emergency and must serve on a temporary basis only so long as the individual’s services are required by the emergency.
Employees who accept a VSIP are also subject to the post-employment restrictions found in other statutes, including 18 U.S.C. 207 and 41 U.S.C. 2104.
If you have any questions, please contact:
- Office of the Assistant General Counsel for Ethics and Personnel Law (GC-21) at [email protected], if you are duty stationed at headquarters
- NNSA Office of General Counsel at (202)586-8627, if you are an NNSA employee duty stationed at headquarters
- All other employees should consult with their local ethics counselor.