The Office of Management and Budget (OMB) claimed in an October 3 legal memo that federal employees furloughed in the current government shutdown have no right to backpay once the shutdown ends. President Trump even hinted that he could pick and choose which employees to reimburse. It’s hard to tell whether this is a serious argument or just part of the political gamesmanship surrounding the shutdown. (The OMB memo is labeled a “draft.”) In any event, it is clearly wrong on the law.
The Antideficiency Act (31 U.S.C. 1341) generally prohibits agencies from incurring obligations to pay money in advance of appropriations. Before 2019, this Act imposed different legal consequences for federal employees furloughed during a government shutdown and those employees considered essential and required to continue to work (so-called “excepted employees”). The government was considered legally obligated to provide backpay for excepted employees since they continued working. Furloughed employees had no legal entitlement to backpay since they didn’t work during the shutdown.
However, the distinction between excepted and furloughed employees for purposes of backpay was more theoretical than practical. Once shutdowns ended, Congress routinely enacted specific language providing backpay for furloughed employees as well. Following the lengthy 2019 government shutdown, Congress amended the Antideficiency Act to eliminate the distinction once and for all. The amendment, known as the Government Employee Fair Treatment Act, provides:
“Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.”
The obvious purpose of this amendment and the clear effect of its language is to place furloughed and excepted employees on the same footing for purposes of backpay following a shutdown. Until very recently OMB itself recognized this in guidance that stated:
“The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) provides that upon enactment of appropriations to end a lapse, both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”
OMB deleted this sentence from its guidance on October 3, the same date as its legal memo.
The OMB memo contradicts the clear purpose and plain meaning of the 2019 amendment. It contends that the amendment “did nothing to create an obligation on the part of the government to pay furloughed employees.” But that’s exactly what it does, providing that furloughed employees “shall be paid” for lost salary during an appropriation lapse. The memo complains that viewing the amendment this way “would effectively collapse the distinction between excepted and furloughed employees.” But again, that is the clear and essential purpose of the amendment with regard to backpay.
The memo argues that the concluding phrase “subject to the enactment of appropriations Acts ending the lapse” means that specific additional appropriation language is still needed to provide backpay to furloughed employees. Nothing in the language suggests this; indeed, the language requiring that backpay be paid “at the earliest date possible after the lapse in appropriations ends” contradicts it. Furthermore, if the language meant what OMB says, the whole amendment would serve no purpose at all. Even more absurdly, its effect would be to create a new impediment to paying excepted employees backpay since the language applies to them too.
Contrary to OMB’s reading, this is boilerplate language similar to the often-used phrase making payment of government obligations “subject to the availability of appropriations.” It simply means that an agency must have funds generally available for employee salaries to pay the backpay once the shutdown ends. It would be significant only in an unusual situation where the continuing resolution or other law ending the shutdown did not restore funding for a particular agency and thereby prevented it from paying backpay to any employees—furloughed or excepted.
In sum, the memo is entirely without merit. It’s bad enough that federal employees (along with the public) must suffer because political decisionmakers fail in their constitutional duties. It’s even worse when employees are used as pawns in these political games and are subjected to frivolous threats like this.