Dems, Murkowski demand White House guarantee backpay for furloughed feds

More than 150 lawmakers, led by Sens. Tim Kaine, D-Va., Chris Van Hollen, D-Md., and Lisa Murkowski, R-Alaska, on Wednesday demanded that the Trump administration guarantee that furloughed federal employees are granted backpay at the conclusion of the ongoing federal government shutdown, which has entered its third week.

Last week, the Office of Management and Budget floated a theory that the 2019 Government Employees Fair Treatment Act, which automatically provides backpay to furloughed federal workers  following appropriations lapses and was signed by President Trump during the 2018-2019 partial government shutdown, merely authorizes Congress to provide backpay after a shutdown. OMB revised its shutdown FAQ document to remove reference to the law’s guarantee, and the Internal Revenue Service revoked shutdown guidance to employees, issued just days prior, that made reference to backpay.

Excepted employees, who are asked to continue to work on essential activities during government shutdowns, have always qualified for backpay at the end of appropriations lapses. But prior to 2019, Congress had to pass additional legislation once government reopened to extend backpay to feds who were furloughed, a process it regularly undertook.

“On January 16, 2019, the Senate unanimously passed the Government Employee Fair Treatment Act to guarantee back pay for all impacted federal workers once a government shutdown ends,” the lawmakers wrote in a letter to OMB Director Russell Vought. “[Prior] to the law’s passage, Congress had to pass specific legislation after each shutdown to ensure furloughed workers received back pay. Explicitly, the law guarantees back pay for all federal employees in the event of a government shutdown.”

OMB General Counsel Mark Paoletta, who authored the legal opinion undermining GEFTA at Vought’s request, doubled down on his claims that Congress still must act to guarantee backpay for furloughed workers on Twitter Wednesday.

“[An] OMB email [in 2019] stated ‘it’s preferable if [GEFTA] were further clarified to make it more explicit that payment to furloughed employees is contingent on future appropriations,’” Paoletta wrote. “That’s EXACTLY what Congress did by making clear that federal employees shall be paid ‘subject to the enactment of appropriations acts ending the lapse.’ . . . Why would Congress write this appropriation specifically covering federal workers . . . if the law already guaranteed that furloughed workers would automatically be paid?”

But legal experts have said the law makes clear that federal workers “shall” be made whole, and that the language cited by Paoletta refers simply to when they will be granted backpay—not if.

“OMB’s general counsel is arguing that Congress amended the law guaranteeing backpay to furloughed federal workers to eliminate that guarantee, completely negating the law it had just passed,” tweeted Joshua Smith, Democratic policy director for the Senate Budget Committee. “This is insane. The amendment just clarified when workers get backpay, not if. The administration is trying to say that the entitlement of backpay that Trump signed into law was not an entitlement of backpay, despite fully knowing at the time it was an entitlement of backpay.”

In their letter to Vought, the lawmakers insinuated that OMB’s stance may be more motivated by politics than a good-faith legal analysis, and urged the White House to reaffirm furloughed workers’ right to backpay.

“The law is clear: all impacted government employees, regardless of excepted or furloughed status, are entitled to back pay after a government shutdown ends, which is consistent with the guidance currently provided by federal agencies, including the Office of Personnel Management,” they wrote. “[The] decision by OMB to remove critical guidance on federal employee backpay is causing unnecessary stress for the federal workforce comprised of nearly 2.2 million employees. Thus, we request you immediately clarify and update the Frequently Asked Questions During a Lapse in Appropriations document and other relevant materials to affirm that furloughed employees will receive backpay, as is required by law.”