Federal workers sent home by this government shutdown have taken some comfort in a recent law that ensures furloughed employees get paid eventually.
That back pay isn’t a sure thing, a new White House memo contends.
A draft Oct. 3 memo by White House Office of Management and Budget General Counsel Mark Paoletta for White House budget director Russ Vought suggests that furloughed government workers would not be automatically provided back pay when Congress eventually reaches a deal on funding the government.
That memo, provided to POLITICO’s E&E News by the White House on Tuesday, was first reported by Axios.
The White House legal opinion defies the expectations of furloughed federal workers and lawmakers who previously backed a law to ensure that those employees would receive back pay after government shutdowns. President Donald Trump signed the bipartisan law requiring back pay after a January 2019 government shutdown.
An effort to deny back pay to some 750,000 workers who could be furloughed during this shutdown would likely draw legal challenges. For now, the White House’s suggestion is fueling additional uncertainty and anger among federal employees and among politicians who worked to require retroactive pay for furloughed workers.
Trump critics see ‘another attack’ on feds
Sen. Tim Kaine (D-Va.) said Tuesday that he was “proud to work across the aisle in 2019 to pass legislation that President Trump himself signed to guarantee back pay to federal workers in the event of a shutdown.” If the White House budget office “chooses thuggish intimidation tactics over following the law, it better prepare to face the American people in court,” Kaine said.
The White House memo suggests that the legislation ending the funding lapse for the government would need to include specific language to provide funds for the back pay of furloughed workers, instead of those funds being provided automatically.
The memo states that the “excepted” federal employees — those who work during the shutdown — must be provided back pay once funding is available.
The law, titled the “Government Employee Fair Treatment Act of 2019,” states that “Excepted employees are required to work during a lapse, and therefore the government incurs binding legal obligations for their salaries which must be paid once an Act providing appropriations for those salaries is enacted.”
Federal employees and the unions that represent them see the suggestion of withholding back pay as the latest White House effort to threaten government workers as the shutdown negotiations drag on. The Trump administration has repeatedly suggested it might conduct mass layoffs of government employees as a cost-saving mechanism during the shutdown.
“It’s just another attack on all of the benefits federal workers get as public servants,” said Nicole Cantello, a union leader who represents EPA employees in the agency’s Chicago-based office.
“It will make EPA workers more concerned about their families’ welfare and their ability to survive this shutdown, which will lead to a more stressed workforce,” Cantello added. That could hurt their efforts to protect public health and the environment.
Everett Kelley, national president of the American Federation of Government Employees, called the White House posture “frivolous” and an “obvious misinterpretation of the law.”
The White House memo is “inconsistent with the Trump administration’s own guidance from mere days ago, which clearly and correctly states that furloughed employees will receive retroactive pay for the time they were out of work as quickly as possible once the shutdown is over,” Kelley said.
Revised White House guidance
The White House updated a public guidance document to change the language about back pay for furloughed workers.
A White House document titled “Frequently Asked Questions During a Lapse in Appropriations” updated on Oct. 3 — the same day Paoletta’s memo was issued — removed language from a previous version of the document stating that “both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse end.”
The version on the White House website as of Tuesday notes only that “excepted employees are entitled to receive payment for their performance of excepted work during the period of the appropriations lapse when appropriations for such payments are enacted.”
The language stating that the Government Employee Fair Treatment Act of 2019 provided retroactive pay for furloughed workers was included in a previous version dated Sept. 30, according to a screenshot taken by the Internet Archive.
The revision to the White House document was first reported by Government Executive.
“Thousands of federal employees did not choose to be furloughed from their jobs during this completely avoidable government shutdown. Denying these workers back pay would be dubious, contradictory and immensely cruel,” said Max Stier, president and CEO of the nonprofit Partnership for Public Service.
‘Not what the law says’
A legal battle is likely to follow any effort to deny back pay for furloughed workers.
“The clear meaning of the law passed during the last Trump administration is that employees are entitled to back pay when a shutdown ends,” said Donald Kettl, professor emeritus and former dean in the School of Public Policy at the University of Maryland.
“The administration is making a clever argument that a follow-on resolution to the act requires Congress to specifically appropriate money to cover the back pay,” Kettl added. “That’s not what the law says. But it’s yet another shot across the bow of the federal workforce and a signal that the administration is likely to drag every issue into court on whatever item for challenge it can find.”
For now, the possibility of denying retroactive pay to some government employees has become the latest flashpoint in the political standoff as the government remains shut down.
Washington Sen. Patty Murray, the top Democrat on the Senate Appropriations Committee, said federal workers — including those who are furloughed — “are entitled to their back pay following a shutdown.”
She called the suggestion that they may not be “another baseless attempt to try and scare & intimidate workers by an administration run by crooks and cowards.”
House Minority Leader Hakeem Jeffries (D-N.Y.) said Tuesday that “every single furloughed federal employee is entitled to back pay period, full stop.” The law “is clear, and we will make sure that that law is followed,” he said.
House Speaker Mike Johnson (R-La.) told reporters Tuesday that while “it is true that in previous shutdowns, many, or most” furloughed workers “have been paid for the time that they were furloughed,” there are “legal analysts who think that that is not something that government should do.”
Johnson said he hadn’t spoken to the White House about it, “but if that is true, that should turn up the urgency and the necessity of the Democrats doing the right thing here” and that it could cause “even more pain” for more people.
Johnson hopes ”that the furloughed workers receive back pay,” he said. “The president believes that as well,” Johnson added. “He and I have talked about this personally, he doesn’t want people to go without pay.”
Andres Picon, Manuel Quiñones and Heather Richards contributed.
