‘The law is the law:’ White House memo on pay for furloughed employees called into question

The guarantee of back pay for furloughed federal employees is now in limbo, as the White House weighs 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, as first reported by Axios, argues that whatever funding legislation Congress ultimately passes to end the current shutdown must 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.

A copy of the OMB document, which a senior White House official shared with Federal News Network, appears to contradict OMB’s previous interpretation of the Government Employee Fair Treatment Act (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, once any current or future shutdown ends.

In technical terms, 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.

But the new draft legal opinion at OMB points to one specific phrase in the 2019 law, which states that the retroactive pay is “subject to the enactment of appropriations Acts ending the lapse.”

Because of that phrasing, the White House document argues that the law does not create an obligation to pay furloughed employees after a shutdown. Excepted employees, however, should still be guaranteed retroactive pay, according to 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 swallows 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.”

Rep. James Walkinshaw (D-Va.) similarly cast doubt on the validity of OMB’s new guidance, calling it “more bluster and BS.”

“The law is clear. Trump signed it,” Walkinshaw said in a statement. “They can’t just invent powers to punish federal workers.”

“Every single furloughed federal employee is entitled to back pay, period, full stop,” House Minority Leader Hakeem Jeffries told reporters Tuesday morning. “The law is clear, and we will make sure that law is followed.”

Approximately 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.

“I hope that the furloughed workers receive back pay, of course,” House Speaker Mike Johnson said Tuesday morning. “I can tell you, the President believes that as well. You know, I’ve talked about this personally, he doesn’t want people to go without pay.”

Just before the House voted to pass the bill in 2019, every lawmaker who spoke during a floor session made clear their intentions that the bill would provide pay for both excepted and furloughed employees.

The bill “provides for retroactive pay for nearly 800,000 federal workers who have been
furloughed,” the late Rep. Sheila Jackson Lee (D-Texas) said at the time.

But on Oct. 3, OMB’s shutdown guidance was quietly updated to remove reference to the 2019 law ensuring back pay for feds. The White House’s revisions to the guidance removed language stating that “both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends.”

The update to OMB’s guidance, first reported by Government Executive, also removed a previous statement that more information on shutdown pay was available from OPM.

The revisions late last week create discrepancy between OMB and OPM’s latest guidance on shutdown compensation for federal employees. Although OMB is calling into question the guarantee of pay for furloughed employees, OPM’s latest guidance still references the 2019 law.

OPM’s September guidance specifically states that the law “provide[s] retroactive pay for Federal employees affected by a lapse in appropriations as soon as possible after the lapse in appropriations ends.”

Additionally, OPM’s 2019 guidance on implementing GEFTA, signed by Trump’s then-acting OPM Director Margaret Weichert, cites the same provision that’s referenced in the White House’s draft memo. But in contrast to OMB’s new opinion, the OPM guidance instead said the provision guarantees both excepted and furloughed employees will receive back pay.

“An employee who is furloughed as the result of a lapse in appropriations must be paid for furlough periods that occurred during the lapse,” the 2019 OPM memo states.

An OPM spokeswoman declined to comment on the discrepancies between OPM’s guidance and OMB’s new draft opinion.

The American Federation of Government Employees called the White House’s new legal opinion “an obvious misinterpretation of the law.”

“It is also 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,” AFGE National President Everett Kelley said.

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.”

If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11

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