Some federal workers who are not being paid during the government shutdown have a nagging fear: They might not receive retroactive pay once the impasse is resolved.
Roughly 1.4 million federal employees whose wages are being withheld during the government shutdown are hunkering down and cutting all nonessential spending, as they missed their first full paychecks on Friday.
Here’s what to know about retroactive pay for those workers when the shutdown ends.
Do all federal workers get back pay?
Both furloughed workers and so-called “excepted” government employees, who must continue to show up to work during the shutdown without compensation, are entitled to back pay under a federal law called the Government Employee Fair Treatment Act of 2019.
The law makes clear that both classes of federal employees affected by a lack of funding will eventually be paid in full. They “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.”
Legal challenges
However, a draft memo from the White House’s Office of Management and Budget suggests that furloughed workers are not guaranteed back pay, an administration official confirmed to CBS News. When asked on Oct. 7 about furloughed workers getting back pay, President Trump said, “I would say it depends on who we’re talking about.”
Legal experts insist that federal employees are unequivocally protected under the 2019 law. In an Oct. 7 statement, Max Stier, CEO of the nonprofit Partnership for Public Service, said the act “is very clear in its mandate to give automatic back pay to furloughed workers during a lapse in appropriations.”
Dan Meyer, a partner at Tully Rinckey in Washington, D.C., said the law appropriates, not authorizes, back pay for workers.
“If this came to a judge, I think the appropriations language would speak heavily that they were required to pay the federal employees based on that legislation,” he told CBS News.
The memo also contradicts previous guidance published in September by the U.S. Office of Personnel Management.
“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,” the agency’s notice read. However, an updated version of guidelines strikes that language.
“Excepted employees will be paid for any earned overtime pay or holiday premium pay when appropriations are enacted,” the OPM now states in its guidance.
The White House did not immediately respond to CBS News’ question about whether or not federal workers will be paid once the shutdown ends.
When would back pay arrive?
The short answer is as soon as the government shutdown ends.
The Government Employee Fair Treatment Act stipulates that federal workers are owed back pay “at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.”
Michael LeRoy, professor of labor and employment relations at University of Illinois Urbana-Champaign college of law, told CBS News, “The law makes clear that they are entitled to back pay, and it preferences automatic payment.”
Federal workers’ last partial paycheck arrived on Oct. 10. Their next pay day was scheduled for Oct. 24. Workers were not paid. Paychecks have yet to be issued, as the second-longest government shutdown in history entered its 27th day Saturday, with no resolution on the horizon.
What about government contractors?
In addition to federal employees, the government contracts with private sector firms who employ millions of workers in custodial, information technology and other roles. They are not similarly guaranteed back pay.
“Contract workers are simply not covered by the statute,” LeRoy said.
They may, however, continue to work and receive paychecks if their assigned contracts are fully funded.
What about workers who collect unemployment during the shutdown?
Federal employees may be eligible for unemployment compensation during the shutdown. The Unemployment Compensation for Federal Employees program provides benefits to federal workers “who lost their employment through no fault of their own,” according to a fact sheet.
Benefits are available for 26 weeks, with maximum amounts varying by state law, according to an Office of Personnel Management memo.
When workers are paid retroactively, the funds are applied against any unemployment benefits they received to avoid overpayment, the memo states. Excepted workers are not considered unemployed and therefore are not ineligible for unemployment benefits in most states, Tom Spiggle, employment attorney and founder of the Spiggle Law Firm, told CBS News.
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