WASHINGTON, D.C. (Government Executive) — The White House’s claims that a 2019 law guaranteeing backpay to both furloughed and excepted federal workers following the end of a government shutdown does not actually guarantee feds backpay lacks both legal and historical grounding, according to experts and a review of the public record surrounding the law’s enactment.
Last week, the Office of Management and Budget quietly revised a Frequently Asked Questions document regarding the ongoing lapse in appropriations, which is expected to last until at least next week, to excise references to the Government Employee Fair Treatment Act. The Office of Personnel Management, for its part, still states that furloughed feds will receive backpay once funding is restored.
An internal legal opinion by OMB General Counsel Mark Paoletta, requested by OMB Director Russell Vought, concludes the 2019 law only authorizes backpay for furloughed federal workers, and that Congress must still appropriate the funds after each shutdown. Feds who are excepted from furloughs and forced to work without pay still are guaranteed backpay under this rationale. The legal memo was first reported upon by Axios, though The Washington Post first published the actual document.
“GEFTA’s directive to pay contingent on the enactment of some future legislation is simply not the type of unconditional obligation that would guarantee, without further action by Congress, that furloughed employees would receive backpay,” Paoletta wrote. “Rather than creating an obligation, GEFTA appears to provide a permanent authorization for furloughed workers to receive backpay in the appropriations act that ends the lapse.”
But John Hatton, staff vice president for policy and programs at the National Active and Retired Federal Employees Association, said this theory is belied by the conditions that led Congress to enact the law in the first place: Congress already routinely included backpay for furloughed federal workers following shutdowns.
“It would render the language of the law meaningless if it required an additional, explicit authorization,” he said. “Without having read the memo myself, I can’t break it apart for where, exactly, the breakdown in understanding of the English language begins and ends, but I’m confident in reading the statute that the law is clear. Any attempt to fail to pay people backpay would be subject to court challenge, and we would certainly be asking the president and Congress to ensure that backpay is paid.”
Dan Meyer, a partner at Tully Rinckey PLLC, a law firm specializing in federal employment issues, said OMB’s justification fails the basic judicial theory known as the “plain meaning rule.” Essentially, if Congress wished only the automatically provide backpay to furloughed federal workers in connection with the 2018-2019 partial government shutdown, it would have included an end-date in the law. And the idea that the law is merely an authorizing statute falls apart, given that the most recent update to the law was enacted as part of an appropriations bill.
“Since Congress didn’t include a closeout date, it would be very hard to make the argument that we can infer that Congress was only speaking about the 2019 shutdown, because of the context and the language of the statute,” Meyer said. “[And] I don’t think they’ll find anything in the legislative history to suggest there was a provisional nature to any of this. It was clear at the time: they wanted toend the hostage-taking that was going on with these shutdowns.”
Indeed, an examination of the first Trump administration’s implementation of the law indicates that it was clear that the law indeed guarantee backpay to all federal workers following a lapse in appropriations.
I will make sure that all employees receive their back pay, very quickly or as soon as possible,” Trump said at an event announcing his intent to sign the short-term deal to end the shutdown in January 2019. “It will happen fast . . . I want to thank all the incredible federal workers and their amazing families who have shown such amazing devotion in the face of this recent hardship. Many of you have suffered far greater, far more than anyone but your families will know or understand.”
