If you work for the federal government, the partial shutdown has probably kept you up at night leaving you with a lot of questions.
It’s estimated that about 800,000 of the 2.1 million federal workers are at least partially affected by the shutdown. If you’re one of the lucky ones considered essential personnel, you’re still getting paid and your only inconvenience may be having fewer coworkers on the job to help out.
If you’re unlucky, you’ve been furloughed. That means you are not receiving your regular paycheck because you’re not allowed to go in to work. And if you’re extremely unlucky, you’re being forced to work, for free.
For those who aren’t getting paid, this can be a confusing and extremely stressful time. Common questions include whether you’ll get back pay, if you can find another job during the shutdown and so on. I’ll try to answer these and other related questions. To help provide those answers, we’ll begin with a brief background into the government shutdown process.
Why do we even have a shutdown?
The United States government was designed with power divided among multiple branches of government, with each branch serving as a check on the other branches. Under the Constitution, Congress has the primary authority when it comes to spending government money.
One specific way Congress controls how government money is spent is through the Antideficiency Act. Basically, this law prevents the federal government from spending money not specifically appropriated by Congress.
Congress can appropriate funds by following the general lawmaking process: both chambers of Congress pass an appropriations bill outlining how the government will spend money. Then the President signs that bill into law. As with other laws that come out of Congress, a two-thirds majority vote in both houses can override a President who decides to veto the appropriations bill.
Government shutdowns occur when this appropriations bill process fails to take place in a timely manner. This typically occurs when there is disagreement between the President and one or more chambers of Congress or between the two chambers of Congress. The current government shutdown is due to disagreement between the president and Congress over funding for a wall on the Mexican border.
Types of shutdowns and workers affected.
We are currently experiencing a partial government shutdown, which means only parts of the many government agencies or departments are shutdown. For example, many federal law enforcement employees and most in the Department of Homeland Security will continue working (although without pay).
Technically speaking, there are three types of workers affected by the government shutdown. First, there are “excepted” employees (sometimes referred to as “essential” workers). These are workers whose paycheck ultimately comes from the appropriations bill that Congress is unable to pass or the President is unwilling to sign, but whose work involves the safety and security of human life and/or property. An example of an excepted employee would be an air traffic controller.
A second group would be “exempted” workers. These are workers who aren’t directly affected when an appropriations bill fails to go into law. Instead, these workers and their respective agencies or departments receive funding through other means, such as multi-year budgets, or they raise their own revenue. The biggest group of exempted workers is the U.S. Postal Service.
Finally, there are those who are neither exempted nor excepted. These may sometimes be referred to as “non-essential” employees. These are individuals who are furloughed. This means they aren’t allowed to come into work and do not get paid during the time they are furloughed.
If you are a federal employee who is adversely affected by the government shutdown, chances are you’re an excepted/essential employee or a non-essential employee. The following questions and answers can apply for both these groups, although they may be most applicable to those who are furloughed.
Question 1: Can I go to work if I’m furloughed?
Yes and no. Some furloughed workers can briefly come into work (and work no more than four hours) to complete an “orderly shutdown” and take care of administrative tasks, such as surrendering government issued devices or submitting time cards.
Besides completing “orderly shutdown” tasks, furloughed workers are legally prohibited from engaging in any work-related functions. In fact, they’re not even supposed to do something as simple as checking their work email.
It’s common for supervisors to force their affected employees to turn in their work issued smartphones and computers to prevent employees from doing anything work-related. At the very least, employees will be told not to use any device to do work-related tasks, whether on a work-issued device or a personal one.
Question 2: Will I get back pay?
Probably. Excepted/essential employees will eventually get paid for the work they did during the shutdown, according to the Office of Personnel Management. As for non-essential employees, that depends on Congress, which must agree to provide this retroactive pay for furloughed time off.
Historically speaking, Congress has always passed legislation granting pay to furloughed workers, although there’s no guarantee they will do so for this shutdown.
Question 3: What if Congress doesn’t approve retroactive pay for furloughed workers?
If Congress does the unthinkable and refuses to provide furlough pay, you have the option of applying for unemployment benefits. You may also apply for unemployment before Congress decides about pay for furloughed workers, but you will likely need to pay back any unemployment benefits you received if Congress eventually decides to provide you with retroactive pay. Keep in mind that there may be a one week or longer waiting period before you actually receive any unemployment benefits.
Question 4: Can I find another paying job during my furlough?
Yes, as long as there is no ethics rule or statute that otherwise prohibits you from engaging in outside employment.
However, if you are a government attorney, you may require a waiver from the Deputy Attorney General before you can do do legal for an entity other than your government employer.
Question 5: Can I use my paid time off to still get paid during the shutdown?
No. Furloughed employees may not use annual leave, paid sick days or any other form of paid time off to receive pay during the government shutdown.
Question 6: Can I go on vacation while I’m furloughed?
Sure, but it won’t be paid time off. A possible risk would be having the shutdown end, but being far away and unable to immediately return to work. When the shutdown ends, most furloughed workers will be expected to return to their jobs on their next working day.
Question 7: Can I roll over any “use-or-lose” paid time off that expired at the end of 2018?
That depends on whether your lost paid time off due to the shutdown being an “exigency of the public business.” Making this decision is up to the discretion of your supervisor or appropriate agency leader.
Question 8: What about being on call during the shutdown?
The type of worker you are will determine whether you need to be on call. If you are an excepted or essential worker and you’re asked to be on call, then you should probably comply with your supervisor’s request.
If you are a non-essential (furloughed) worker, then you can’t technically be on call because you aren’t allowed to get called in to work while the shutdown continues. Depending on when the shutdown ends, you might be effectively “on call.” For instance, if the shutdown ends on Monday evening at 11:30 p.m. and your next working day is the next day (Tuesday) at 8 a.m., then you’ll have what amounts to 8 hours and 30 minutes of notice for going back to work.
Question 9: If I’m a subcontractor, does the shutdown affect me differently?
It can, but exactly how a subcontractor (such as a security guard or custodian) is affected requires a complex and case-specific analysis. Nevertheless, here is a rough overview of how the shutdown could affect you.
In a situation where there is no contract between your employer and the government agency, then the shutdown will likely prohibit you from working for that agency. During the shutdown, the Antideficiency Act will prevent the agency from entering into new contract, subject to a few exceptions. The exceptions include:
1. A law specifically allowing the agency to pay for a contract before an appropriation bills has been signed into law,
2. The contract is necessary for the safety and protection of human life and property,
3. The contract is needed to allow the president to execute his constitutional duties and powers, or
4. The agency must continue to operate during the shutdown because it is “necessarily implied” as a result of the presence of other authorized activities taking place.
In a situation where you’re working under a contract that’s already funded, then you might be allowed to continue work as a subcontractor. But there are a few caveats to this.
First, in order for you to do your job, there must be no need for any essential activities that must be done by a furloughed federal employee. For instance, if your job requires the supervision or support of a federal employee that’s not allowed to work, then you may be forced to stay home, too.
Second, if continuing work as a subcontractor during the shutdown is wasteful or pointless, then the agency has the discretion to stop having you come in to work. For example, if your job is to cook meals in the agency’s cafeteria, but no one is in the office, you can’t expect to come in to work to cook meals that no one will eat.
As for those who are not working during the shutdown, whether or not you receive pay for missed work is ultimately going to be up to your employer. However, in many situations, subcontracted employees will not receive any pay for missed work that is the result of a shutdown. Any congressional action to provide back pay to furloughed workers will likely only apply to federal employees.
Question 10: What about new federal employees who were going to start working January 1, 2019?
The answer to this question is based on what type of worker you are. If you are an essential or excepted employee, then it’s possible you may need to come in to work, although you won’t get paid until the shutdown ends. However, it would be best to speak directly with your hiring contact to know for sure.
If you are a non-essential worker (who would otherwise be furloughed) then you will not be able to start work on Jan. 1, 2019, as originally scheduled, since the law specifically prohibits non-essential employees from completing any work-related tasks.
Question 11: How is not paying workers even legal?
For non-essential workers, not paying them is legal because they’re not being forced to work without pay. That’s why it’s up to Congress to decide if they will eventually get paid.
For excepted workers who must still come in to work without pay, it’s a stickier legal situation. This is because while they will eventuallybe paid for the work they have done, there’s no indication of when this compensation will arrive. But getting paid eventually doesn’t mean what’s happening to excepted workers is legal. The Fair Labor Standards Act (FLSA) requires that employees get paid on their regularly scheduled pay day and this is clearly not happening during the current government shutdown.
In fact, about a week ago, a federal employees union filed a lawsuit alleging that the government was in violation of the FLSA when it did not pay the excepted employees when it was supposed to. While this lawsuit has just been filed, there is a good chance of success. A very similar lawsuit was filed during the 2013 government shutdown and the plaintiffs won, with the court ordering the government to pay double the amount of the money owed to them.
Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Washington, D.C., and Bethesda, Md., where he focuses on workplace law helping protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment and wrongful termination in the workplace.