The promise of back pay for furloughed federal employees is now in jeopardy, as the White House toys with a different interpretation of the 2019 law that ensures federal employees get compensated following a government shutdown.
A new draft legal opinion from the Office of Management and Budget asserts that any funding legislation Congress ultimately passes to end the current shutdown has to explicitly include appropriations to provide back pay for furloughed federal employees. And if it’s not expressly written in the spending legislation, the OMB memo argues that furloughed workers cannot receive any retroactive compensation.
The copy of the OMB document appears to contradict OMB’s previous interpretation of the Government Employee Fair Treatment Act, or GEFTA, which President Donald Trump signed into law in 2019 during the last government shutdown. Both OMB and the Office of Personnel Management previously affirmed that under GEFTA, excepted and furloughed employees would be given back pay as soon as possible, as soon as any current or future shutdown ends.
GEFTA amended the Antideficiency Act to state that both furloughed and excepted employees “shall be paid” for the length of the shutdown, “at the earliest date possible” after the shutdown ends.
However the new draft legal opinion at OMB points to one specific phrase in the 2019 law, stating that the retroactive pay is “subject to the enactment of appropriations Acts ending the lapse.”
Due to this wording, the White House document argues that the law does not create an obligation to pay furloughed employees after a shutdown. Excepted employees should still be guaranteed retroactive pay, per the draft legal opinion.
OMB’s new interpretation of the provision was quickly called into question. Kevin Owen, a partner at Gilbert Employment Law, said he believes the White House’s view on the 2019 law is “too narrow.”
“I interpret that last clause as triggering when the payment will go out — not if the payment will go out,” Owen said in an interview. “I don’t believe the court will interpret that last clause to be the exception that follows the rule.”
If furloughed employees are not paid after the shutdown, Owen said that could also violate the Civil Service Reform Act, which prohibits agencies from suspending pay for employees without due process — as well as the Fair Labor Standards Act.
Following the White House’s new draft opinion, federal unions, good government organizations and Democratic lawmakers criticized the Trump administration’s reinterpretation of the 2019 legislation.
“The law is the law,” said Sen. Chris Van Hollen (D-Md.), a lead cosponsor on the 2019 bill. “That legislation was signed into law — and there is nothing this administration can do to change that.”
750,000 federal employees are either currently or soon will be furloughed as a result of the government funding lapse. The Congressional Budget Office estimates that their combined compensation will cost roughly $400 million for each day that the shutdown continues.
On October 3rd, OMB’s shutdown guidance was silently updated to remove reference to the 2019 law ensuring back pay for feds. The White House’s revisions to the guidance removed language that said “both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends.”
The update to OMB’s guidance also took down a previous statement that more information on shutdown pay was available from OPM.
Max Stier, president and CEO of the Partnership for Public Service, said the 2019 law is “very clear” in its requirement to pay furloughed employees retroactively.
“Thousands of federal employees did not choose to be furloughed from their jobs during this completely avoidable government shutdown,” Stier said. “Denying these workers back pay would be dubious, contradictory and immensely cruel.”
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