Federal employees furloughed because of the government shutdown might not receive back pay once the shutdown ends, a move that appears to conflict with a 2019 law signed by President Donald Trump during his first term.
The shutdown entered its 35th day Tuesday, tying the record for the longest in U.S. history set in 2018. It is expected to break that record Wednesday after Senate Democrats on Tuesday rejected for the 14th time a House-passed continuing resolution that would fund the government through Nov. 21.
On Friday, agencies across the government again sent furlough notices to hundreds of thousands of employees. The notices, required every 30 days, included one notable change: They no longer contained language assuring workers that back pay was guaranteed once the shutdown ended.
“Once an appropriation or continuing resolution is enacted, excepted employees are entitled to receive payment,” read a message sent to some parts of the government and obtained by The Washington Post.
The sentence omitted furloughed workers and did not appear in the first notice issued last month, the Post reported, citing an employee who spoke on the condition of anonymity for fear of retribution.
The Government Employee Fair Treatment Act of 2019 requires federal employees or District of Columbia public workers who are furloughed or required to work during a lapse in appropriations to be compensated for the period of the lapse, and at the earliest date after it ends, regardless of scheduled pay dates.
The change was expected after the Office of Management and Budget circulated a draft legal opinion Oct. 3 arguing that although the 2019 law authorizes retroactive pay, it is “not self-executing” and therefore requires Congress to pass an additional appropriation before furloughed workers can be paid.
Lawmakers from both parties have said they expect all employees will ultimately be paid, though legislation to issue pay immediately has stalled, according to the Post.
“This is something we are very much open to discussing with Democrats,” White House press secretary Karoline Leavitt said at Tuesday’s briefing, which aired live on Newsmax and the Newsmax2 free streaming platform.
“As part of the discussions about the continuing resolution to keep the government open, and it’s something that Republicans are talking with Democrats about right now. I won’t get ahead of those negotiations or discussions.”
More than 650,000 employees have been furloughed while many others continue to perform their duties, also without pay, the Post reported. A smaller number, mostly active-duty military and law enforcement personnel, are still receiving salaries as the Trump administration has found alternative sources of funding.
The National Treasury Employees Union, which represents federal workers in 38 departments and agencies, acknowledged in a blog post Monday that the new notices had removed the sentence guaranteeing retroactive pay.
“The law is clear that federal employees receive all back pay that was missed over the course of a shutdown, and NTEU intends to make sure that law is enforced,” the union wrote. “As a reminder, NTEU endorsed the Government Employee Fair Treatment Act when it was signed into law by President Trump in 2019.
“NTEU members have been speaking up about the financial stress this shutdown has caused their families, and we urge Congress and the administration to reach an agreement to reopen government and pay federal employees as soon as possible.”
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