WASHINGTON — A draft White House memo argues that furloughed federal workers are not entitled to back pay after the government shutdown lifts, White House press secretary Karoline Leavitt told NBC News.
The memo, first reported by Axios, comes despite the Office of Personnel Management’s own September guidance, which said federal workers will receive retroactive pay after the shutdown lifts.
The memo also clashes with a 2019 law that requires back pay for federal workers. The law, called the Government Employee Fair Treatment Act of 2019, says all federal employees, whether furloughed or deemed essential and working without pay, must receive back pay after a shutdown ends.
“Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations,” the 2019 law says.
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Axios reported that the White House does not believe the law automatically covers all furloughed workers because of a change to the law that says employees would be paid “subject to the enactment of appropriations Acts ending the lapse.” The White House interpreted the added clause to mean that Congress must appropriate the back pay once a shutdown ends.
The memo comes as Republicans and the White House seek to ramp up pressure on Democrats to vote for the GOP-supported continuing resolution, which would provide short-term government funding at current levels. Any White House action based on the memo would increase pressure on the Senate to pass the short-term funding bill. Congress could close the supposed loophole cited by the White House in any funding resolution to reopen the government.
A September version of a frequently asked questions page published by the White House initially pointed to the Government Employee Fair Treatment Act of 2019, according to a document archived by the Wayback Machine, an internet archival tool.
The September version of the document said that “furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”
The page was later updated to remove the reference to the 2019 law, as first reported by Government Executive. The new version of the document says exempted employees are “entitled” to back pay, but makes no mention of back pay for furloughed employees.
When asked if furloughed federal employees will receive back pay, House Speaker Mike Johnson, R-La., said he had not spoken to the White House, but was aware of “some legal analysts who are saying that that may not be appropriate or necessary in terms of the law requiring that back pay be provided.”
Asked whether he wanted furloughed employees to receive back pay, he said he did.
“I hope that the furloughed workers receive back pay, of course,” he said. “We have some extraordinary Americans who serve the federal government.”
Senate Majority Leader John Thune, R-S.D., told reporters that he was “not familiar” with the 2019 law on furloughed employees.
Asked about the law, Thune said he did not “know exactly what the law says, but I’m assuming they’re looking at it.”
“It’s a non-issue. Open the government, people will get paid,” he said, saying that his understanding was that federal workers would receive pay.
The president of the major union representing federal employees, the American Federation of Government Employees, blasted the draft memo as an “obvious misinterpretation of the law.”
“As we’ve said before, the livelihoods of the patriotic Americans serving their country in the federal government are not bargaining chips in a political game,” said union president Everett Kelley in a statement.
Democrats are pressing to include an extension of Affordable Care Act subsidies, which are set to expire at the end of the year, in any short-term government funding bill.
Lawmakers do not appear close to an agreement to reopen the government. On Monday, the Senate rejected both the Republican and the Democratic short-term spending bills, which have failed to pass multiple times.
The House does not have votes scheduled this week. The chamber is set to return to Washington on Oct. 14.