Notice & Comment

Why Federal Employees Will Not Be Working for Free During the Shutdown

Even though 25% of the federal government is shut down, many federal employees are considered essential (i.e., their service is necessary for emergencies involving the safety of human life or the protection of property) and must work during the shutdown. Soon, you might hear about these employees having to work for free during the shutdown. However, this is incorrect. Any federal employee working during the shutdown cannot work for free and, as a practical matter, it is unlikely that the shutdown will monetarily impact federal employees.

This government shutdown is more limited than a complete government shutdown. Annual appropriations funding is broken down into 12 areas of funding. Traditionally, Congress would pass an appropriations bill for each area of funding. However, over recent history Congress has not had enough time to pass each bill separately. As such, Congress often includes several areas of funding in one appropriations bill, known as an omnibus bill.

This year, Congress has already passed full-year appropriations for 5 of the 12 appropriations bills, including the 3 largest appropriations bills. Combined, these 5 account for roughly 75% of all discretionary spending. Thus, when funding expired on Friday, December 21, 2018, only agencies covered in the remaining 7 appropriations bills (25% of discretionary funding) shut down. As an additional caveat, many agencies never shut down as they are not subject to annual appropriations (e.g., the U.S. Postal Service).

As a practical matter, it is unlikely that the shutdown will monetarily impact federal employees.  Although not guaranteed for the current shutdown, every time the government has been shutdown, Congress has retroactively decided to pay federal employees for the duration of the shutdown, regardless of whether they worked or not. However, Congress has traditionally decided not to retroactively pay federal contractors, which have likewise generally opted to not pay their employees who could not work during a shutdown.

Keeping with this prior practice of retroactive pay, most federal employees will likely not see any difference in their paychecks. The Office of Personnel Management has held that previously authorized pay will be processed during a shutdown. Due to when this shutdown falls in the pay period, the shutdown would have to last for at least three weeks for most paychecks to be impacted. As the current shutdown is at the end of the pay period for employees who do not work on Saturdays, these employees will receive their full paychecks at the normal time (generally, December 28 to January 3). A shutdown would only impact paychecks federal employees receive on the next pay date, starting on Friday, January 11, 2019. For reference, the longest shutdown in history was exactly three weeks.

Even if Congress does not follow tradition and opts not to retroactively pay all employees during the shutdown, employees that worked during the shutdown must be paid. Both the Department of Justice and the Office of Personnel Management have concluded that employees working during a shutdown creates an obligation to pay the employees. As the Fair Labor Standards Act (FLSA) generally requires employers (including the federal government) to pay employees for their time worked, employees that work during a shutdown must be paid. Specifically, the FLSA exception to not pay employees during a government furlough only applies if the employees do not work.

If Congress does not retroactively appropriate funding to pay employees who worked during the shutdown, the employees would have to sue (likely a class action) the United States in the U.S. Court of Federal Claims. In fact, federal employees have already successfully sued the United States for violations of the FLSA resulting from a shutdown. After the 2013 shutdown, the U.S. Court of Federal Claims found violations of the FLSA resulting from the government providing delayed paychecks to employees. Even if Congress opted to expressly pass a limited repeal of the FLSA and not pay employees, the 13th Amendment would likely provide a backstop to the government forcing employees to work for free.

Although employees who do not work during the shutdown might not be paid and federal contractors will likely not pay their employees for time they could not work during the shutdown, any essential employees who work during the shutdown must be paid. If the essential employees’ pay is delayed as a result of the shutdown, the employees are entitled to damages under the FSLA.

*I edited this post to reflect that Congress has traditionally decided not to retroactively pay federal contractors during a shutdown.

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