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INSIGHT: Three Options for Federal Employees Caught in Government Shutdown

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Federal employees are anxiously awaiting their paychecks following the end to the partial government shutdown while their bank accounts are dwindling. Tully Rinckey’s Michael W. Macomber discusses some paths they can pursue and the labor and employment issues involved.

Despite reopening the government for three weeks, the seemingly never-ending 35-day partial government shutdown—as well as the uncertainty of a budget deal occurring in the next three weeks—has landed many federal employees on financial thin ice, and left to ponder their options.

For “excepted” employees, those required to work during a partial government shutdown, there is little or no time for side jobs, and not showing up for work, or even participating in a strike, could get you fired.

So what’s a federal employee to do?

One: Unemployment Benefits

Although federal employees are guaranteed to receive retroactive pay after the shutdown is over, thanks to the Government Employee Fair Treatment Act of 2019, furloughed federal employees may be eligible for Unemployment Compensation for Federal Employees (UCFE) during the government shutdown.

In general, the law of the state in which the federal worker is employed is the state law under which an individual’s eligibility for benefits is determined, according to the Office of Personnel Management (OPM). The guidelines are outlined in a 2013 memothat remains in effect.

Upon receipt of retroactive pay following the shutdown, any unemployment benefits paid to employees will be considered “overpayments” and must be paid back. State unemployment agencies will determine whether overpayments exist and employees will likely be given the opportunity to voluntarily repay the overpayments, according to OPM.

However, whether the full overpayment amount must be paid all at once, or if payment plans are used, varies by state. In addition, certain states have provisions for wage garnishments if overpayments are not promptly returned.

Excepted employees working on a full-time basis are generally not eligible for unemployment compensation, according to OPM. That’s because employees are required to be paid for their hours worked once the government reopens, so they are not considered unemployed.

But there may be a glimmer of hope. The governors of Michigan, New York, and Washington State recently called on the Department of Labor to provide guidance on whether states have the flexibility to waive rules preventing them from providing unemployment benefits to excepted government employees. And in Vermont, as of Jan. 22, federal employees who are working during the shutdown may file for unemployment benefits. It remains to be seen if other states will follow.

Two: ‘Double’ Pay

For working federal employees, the longer the shutdown continues, the more likely they are to receive double pay as part of a growing number of lawsuits.

Among them, citing a violation of the Fair Labor Standards Act (FLSA), the American Federation of Government Employees (AFGE) filed a lawsuit on Dec. 31, 2018, against the federal government on behalf of approximately 400,000 “essential” federal employees required to work during the partial shutdown. Making federal employees work without pay during the partial shutdown, but withholding their pay, violates the FLSA’s minimum wage and overtime pay mandates, according to the claim.

To qualify for double pay, an impacted federal employee’s average earnings over the pay period must fall below the minimum wage rate. Those essential employees not furloughed and required to work overtime would likely be entitled to damages and would be paid “twice.”

The only catch is the length of time it may take for impacted employees to receive payments. The AFGE sued the federal government following a 16-day shutdown in 2013, claiming that the FLSA requires all employees, including federal employees, to be paid on time for services rendered. However, it has been two years since the decision was issued and the government has yet to determine the calculations of back pay owed to federal employees.

As for unpaid federal contractors, it is unclear if they will have any legal recourse after the federal government re-opens. It is also unclear if federal contractors working in “essential” positions will be paid, if funding has not already been appropriated and designated to fund the impacted government contract.

Three: Side Gigs

Federal employees—both those working and furloughed—need to be careful about any work they take on to supplement their incomes during the partial shutdown. Certain fields connected to an employee’s area of expertise may, in some cases, not be allowed under federal rules, and often require agency approval to ensure there is no conflict with government work.

Unfortunately, seeking guidance from agencies that are closed could leave federal employees left wondering if they will get in trouble for their side gig once the shutdown is over.

Federal employees should also be wary of using crowdfunding campaigns, such as GoFundMeor social media to raise funds.

Accepting a “gift” from a person or organization that may have no official dealings with the employee’s agency, but is offered because of the employee’s official position, could create an appearance that the furloughed or exempted employee is using his or her public position for private gain, according to the U.S. Office of Government Ethics.


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