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

by Sam Wice — Monday, Dec. 24, 2018

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.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

9 thoughts on “Why Federal Employees Will Not Be Working for Free During the Shutdown

  1. Brian

    Retroactive pat is nice, I guess. Unless you’re rent is due before you get the retroactive pay. Or your mortgage. Or your car payment. Or your credit card bills. Or…but you get my point. Maybe you have enough savings to get through a paycheck cycle or two, or more, without a paycheck. But I’m guessing the best majority of people in this country, including government employees on furlough, don’t. And getting the money later, after you’ve been evicted from your apartment, had your car repoed, gotten a foreclosure notice, received dinning letters, and/or had your credit history dinged doesn’t really make you whole again. Politicians fail, and the people suffer. All the while, the politicians ARE getting paid. God bless America, I guess…

    Reply
  2. Bob

    Sam, while a bit of a reality check on the consequences of the shutdown is surely welcome, I think you do the readers of this blog a serious disservice by not even mentioning an important category of workers that really do risk suffering serious consequences of even a relatively short-term shutdown: government contractors. While Congress has not previously left federal employees out to dry, it has done so with contractors. And, spurred by a push from the GOP, particularly during the George W Bush Administration, a greater and greater share of federal work is done by contractors. This is particularly true for the very agencies that are subject to this “partial” government shutdown including DHS.

    It’s fine if your post was intended to investigate the consequences of a relatively narrow slice of those affected by the shutdown. But as written, it is incomplete and bordering on misleading to leave out contractors. I hope you will do a followup.

    Reply
    1. Sam Wice Post author

      I wrote the post to address essential employee pay during the shutdown. I see your point about contractors and have added some additional detail so that it does not give any implication that no workers will be impacted by the shutdown if Congress follows its previous practices.

      Reply
  3. John D

    Thank you for this helpful post. The links are helpful. A few thoughts/questions:

    * After a prior shutdown, I heard of people who were scheduled as new hires, whose start dates were pushed back, and who lost pay for that time period notwithstanding the subsequent legislation. If what I heard was accurate, it would represent a (small) gap in the analysis. I wonder too whether there would be gaps related to people who receive hourly pay or who rely on overtime or premium pay, but who don’t work that time as a result of furlough. These are small points, but maybe worth considering, in the spirit of the exercise.

    * Some excepted and exempt Federal employees will be working lots of uncompensated extra hours during the shutdown to make up for the lost productivity of furloughed colleagues. The excepted ones in particular are on hand to deal with the most critical issues, but have fewer colleagues to rely on to accomplish the work. And by the same token, many furloughed Federal employees will work many extra uncompensated hours after they come back, just to catch up with the work that they miss. One could quibble about whether this counts as “working for free,” I suppose (for these people, all “overtime” is working for free). It’s certainly a different type of financial burden than what we see in the papers. But it can entail real costs, such as for child care.

    * I wonder if the statistics on overall discretionary spending are potentially misleading, inasmuch as they could be read to suggest that 75% of Federal workers are at work and being paid. Unfortunately there’s no citation for the 75% statistic (which the author presumably calculated), but I’d imagine that a significant portion of that 75% will end up in large procurements, without supporting individual federal workers or individual contractors. I’d be interested to know what percentage of the federal workforce is affected.

    Reply
  4. Humbug

    Wrong. This furlough started on the Saturday just before the new Pay Period. Guess what? Everyone’s check was short due to that Saturday not being included. So yes,the furlough monetarily affect “essential” government employees.

    Reply
  5. george

    the president,congress ,the senate none of these politcians should be paid during a government shutdown.they are not essential to sustaining life.

    Reply
  6. Ferrell

    I am a fed who is working for free during the shutdown as I did during the 2013 Shutdown. You are wrong we only get paid when and if back pay is approved!! There is a difference in exempt and excepted employees.

    Reply

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