Notice & Comment

Must All Federal Employees Work During a Future Shutdown?

To ensure that federal employees were promptly paid after the 35-day shutdown ended, Congress recently passed the Government Employee Fair Treatment Act of 2019. However, by passing the Act, Congress might have inadvertently required all federal employees to work during a future shutdown.

The Antideficiency Act requires the government to shut down when Congress does not appropriate funds. Specifically, “[a]n officer or employee of the United States Government . . . may not . . . involve [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.” The Department of Justice has held that requiring federal employees to work during a shutdown obligates the government to pay their salary. Likewise, the U.S. Court of Federal Claims has held that the government violates the Federal Labor Standards Act when it does not pay, on the regular pay date, employees who work during a shutdown. As such, except for limited exceptions (e.g., employees whose services relate to emergencies involving the safety of human life or the protection of property), federal employees cannot work during a shutdown.

However, the Government Employee Fair Treatment Act of 2019 potentially changed this obligation analysis. Specifically, Congress amended the Antideficiency Act to say that “[e]ach employee of the United States Government . . . furloughed as a result of a covered lapse in appropriations 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, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” In other words, the government is now obligated to pay all employees after a shutdown ends, regardless of whether the employee worked during the shutdown. In a future shutdown, if the government is already obligated to pay an employee, requiring the employee to work during a shutdown would likely not violate the Antideficiency Act as the government would not be creating a new obligation.

The Executive Branch has already taken a similar approach to other examples where federal employees must be paid by law, regardless of whether they work or not during a shutdown. Specifically, federal employees who are entitled to their salary by virtue of their position and not their actual time worked (e.g., those directly appointed/nominated by the president) may work during a shutdown as the obligation to pay their salary is not impacted by whether the employee works during a shutdown.

I acknowledge that my interpretation of the Government Employee Fair Treatment Act of 2019 is likely contrary to the intent of Congress. If Congress wished to change a long standing practice of only a limited number of employees working during a shutdown, it likely would have been more explicit. If anything, Congress likely intended the opposite. In his press release regarding sponsoring the Act, Senator Ben Cardin explicitly referenced both employees “forced to work without pay and those locked out of their jobs during the shutdown.” Likewise, the Act itself considers both (i) employees who are excepted and must work during the shutdown and (ii) employees who are furloughed and do not work during a shutdown. By referencing furloughed employees, Congress likely intended for future shutdowns to involve the government furloughing employees (i.e., the employees not working). However, the legal ramifications of the Act regarding obligations to pay employees are likely clear enough that Congress may have inadvertently authorized all employees to work during a shutdown.

Even though the Act may have eliminated employees not working during a shutdown, it does not mean that shutdowns would be completely eliminated. Although the government could continue to incur obligations to pay employees, it still could not actually pay employees until Congress passes an appropriations. Similarly, the government could not incur non-employee obligations (i) unrelated to emergencies involving the safety of human life or the protection of property or (ii) unless otherwise authorized by law. For instance, federal contractors could not work, employees could not travel, employees could not attend training, and the government could not onboard new employees. As such, the Act may have inadvertently shifted some of the hardships of a government shutdown from the general public who cannot access federal services during a shutdown to federal employees who may now have to work with delayed pay during a shutdown.

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