A draft White House memo, reported by Axios Tuesday, lays out a plan to stiff federal workers on furlough during the ongoing government shutdown.
The memo reinterprets the Government Employee Fair Treatment Act, or GEFTA, a federal law signed into law by Donald Trump in 2019, amid the longest shutdown in U.S. history.
GEFTA is typically interpreted as guaranteeing furloughed government workers automatic backpay.
But Axios’s Marc Caputo reports that the memo, from the Office of Management and Budget, “argues that GEFTA has been misconstrued or, in the words of one source, is ‘deficient,’” in light of an amendment made nine days after it was signed into law.
The amended law includes language providing that furloughed employees will be paid “subject to the enactment of appropriations Acts ending the [shutdown].”
As interpreted by the White House, this means backpay is not automatic, but requires explicit approval by Congress. As Semafor reporter Dave Weigel put it, the White House believes you can simply “not appropriate” the backpay, “or appropriate it and impound it.”
“Does this law cover all these furloughed employees automatically? The conventional wisdom is: Yes, it does,” a senior White House official told Axios. “Our view is: No, it doesn’t.”
Legal experts told Axios that interpretation is misguided. “The law here is quite clear,” said Sam Berger, senior fellow at the Center for Policy and Budget Priorities. “The caveat is, if you follow the law.”
Notably, the OMB memo contradicts shutdown guidance issued by Office of Personnel Management last month.
The guidance, which was updated on September 28, says that employees who are furloughed will get paid. “After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods,” the document states. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”
The plan comes as the OMB under Russell Vought seizes on the shutdown to try to cull the federal workforce and fulfill Trump’s threat to punish Democrats by “cutting vast numbers of people out, cutting things that they like, cutting programs that they like.”
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