Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
VERA/VSIP both carry restrictions on reemployment within the federal government. Do those restrictions apply to jobs in the legislative and judicial branch? How about federally funded research and development centers (such as MITRE) and federally funded foundations (such as the HM Jackson foundation)?
A:
As you are aware, an employee who left the federal service under the Voluntary Early Retirement Authority (VERA) or Voluntary Separation Incentive Payment (VSIP) may, upon reemployment, be subject to certain financial impositions.
Generally, only employees of executive agencies are eligible to separate under VSIP, though the Smithsonian Institute and the Administrative Office of the United States Courts may, at their election, institute a program similar to VSIP. See 5 U.S.C. § 3521 as amended. Should an employee who received a VSIP payout become reemployed under a “personal services contract (or other direct contract) with the United States Government (other than an entity in the legislative branch)” within five years of receiving the VSIP benefit, it is generally required that he or she repay the entire amount of their separation incentive before beginning work. See 5 U.S.C. § 3524. Thus, the penalty on reemployment with the federal government for individuals separated under VSIP applies to any individual with a direct employment contract with the federal government, even if that is an employee of the federal judiciary or federal foundation. While the language above appears to exempt the legislative branch, other provisions in the same section appear to merely allow a waiver of repayment for employees of the judicial and legislative branches where “the individual involved possesses unique abilities and is the only qualified applicant available for the position.” Most other agencies may only waive VSIP repayment for temporary reemployment under emergency circumstances. Id.
The rules governing which employees are eligible for VERA are more complex, but cover most federal employees. See 5 U.S.C. § 8331 and § 8336 for CSRS employees and 5 U.S.C. § 8414 for FERS employees. When an employee receiving an annuity under VERA becomes reemployed with the federal government, his or her salary will generally be offset by the annuity to prevent “double dipping.” It is possible for an agency to waive the offset, but there do not appear to be any general exemptions to the rule, though the rules apply differently in some instances to current or former Members of Congress and federal judges. See 5 U.S.C. § 8344.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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