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Despite an Executive Order calling for no raises this year, federal civilian employees shouldn’t be too quick to count them out. At least not yet.
Although the prospect of no pay increase in 2019 continues to loom, and the current partial government shutdown drags on, it is a good time to investigate possible solutions for our federal civilian employee clients. Many have not received their hard-earned paychecks this year and need answers now more than ever.
Rather than focusing on the short-term issues furthering the longest shutdown in history, a look at the more impactful issue that potentially affects they daily lives of all civilian federal employees—their annual pay—is worth some thought.
It may be difficult to imagine it now, but the partial government shutdown will eventually end, and federal civilian employees will return to work and receive their regular paychecks. The next spending bill will be passed. But how did we get here, and what will that spending bill look like?
On December 22, 2018, President Donald Trump instituted a pay freeze for federal civilian employees with Executive Order No. X19-10108, “Adjustments of Certain Rates of Pay (the Order). The Order sets forth that non-military federal employees’ pay rates will remain unchanged through 2019, and the Office of Personnel Management has issued pay tables for 2019 pursuant to the Order. These tables, unfortunately, make it clear the 2019 pay scales have not changed from the 2018 rates. As it stands, the freeze is in effect—for now.
Given the partial government shutdown and its effect on federal civilian employees’ bank accounts, the pay freeze has been met with criticism by many, including federal employees, unions, and their supporters. The National Treasury Employees Union (NTEU) issued a statement by NTEU National President Tony Reardon, which described the pay freeze as “pouring salt into the wound. It is shocking that federal employees are taking yet another financial hit. As if missed paychecks and working without pay [during the partial shutdown] were not enough, now they have been told that they don’t even deserve a modest pay increase.” NTEU represents 150,000 employees at 33 federal agencies and departments.
If history is any indication, federal civilian employees may not want to be too quick to give up hope about the prospect of pay increases this year. Although the Order sets forth that federal workers will not receive raises, pay increases for federal civilian employees might still be possible. Democratic lawmakers have indicated they plan to overrule the Order and give federal workers a 1.9 percent pay increase, retroactive to the beginning of 2019. The question in many people’s minds is whether this is even possible. The short answer is yes, but whether or not it is probable is another question.
Federal civilian employees actually have been here before. In 2004, Congress retroactively instituted a pay raise for federal civilian employees. On January 23, 2004, the Senate passed a spending bill which, importantly, contained a 4.1 percent pay raise for federal employees, retroactive to January 1, 2004. This means that the retroactive nature of such a pay raise should not pose any issues to federal civilian employees hoping for a pay raise.
However, the situation federal civilian employees faced in 2004 was somewhat different from the current scenario. As mentioned, President Trump has issued an Executive Order freezing all pay for non-military federal employees. In 2004, President George W. Bush did not issue an Order freezing pay. Instead, President Bush’s Order set forth a 2 percent raise, which Congress subsequently “overruled” by retroactively increasing the figure to a 4.1 percent pay raise for federal civilian employees. President Trump’s recent Order, a blanket pay freeze, adds a wrinkle to any prediction as to whether or not a retroactive raise would be successful.
First, it is unclear whether or not Congress even has the authority to override an Executive Order under these circumstances. Secondly, constitutional questions aside, any appropriations bill would need to be signed by President Trump. But the question is whether he would be willing to sign a bill that directly contradicts his own Executive Order. Many would say no. Others would suggest that the Order is part of a larger negotiation strategy employed by the President, and that funding a retroactive pay raise will not be a deal breaker.
Given the more publicized and contentious issues surrounding the shutdown and this next appropriations bill, I believe that a pay raise for federal civilian employees still remains a possibility. Federal employees seeking clarification about how the government’s pay freeze affects them should consult with an attorney who is knowledgeable in federal employment law.
James R. O’Connor, Esq. is a labor and employment law associate in Tully Rinckey PLLC’s Buffalo office, where he focuses his practice on representing clients in federal and private sector employment law matters.