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White House officials are raising the possibility that furloughed federal workers might not be entitled to back pay from their time off during the government shutdown.
Hundreds of thousands of federal workers woke up Oct. 1 to find themselves furloughed or working without pay, after government funding lapsed overnight.
President Trump on Tuesday said some furloughed federal workers “don’t deserve” back pay after a draft White House memo raised the possibility that some employees might not be paid after the government shutdown.
“I would say it depends on who we’re talking about,” Trump said to reporters alongside Canadian Prime Minister Mark Carney. “I could tell you this, the Democrats have put a lot of people at great risk and jeopardy. But it really depends on who you’re talking about.
“For the most part, we’re going to take care of our people,” he added. “There are some people that really don’t deserve to be taken care of. And we’ll take care of them in a different way.”
The government shutdown marks the first time since January 2019 that lawmakers failed to strike a deal to keep federal agencies open. The previous shutdown, during Trump’s first term, lasted 35 days — the longest in history.
The Congressional Budget Office (CBO) estimated the last shutdown reduced economic output by $11 billion during the following two quarters, including $3 billion the U.S. economy never gained back.
The CBO has more recently estimated that approximately 750,000 employees could be furloughed each day of a shutdown. Their total compensation would cost the U.S. economy roughly $400 million each day they are out of work.
Congress has traditionally voted to retroactively pay federal workers who were furloughed or working unpaid, once a deal is reached to reopen the government.
But during the 2018-19 shutdown, Congress passed the “Government Employee Fair Treatment Act of 2019,” which has been broadly interpreted to mandate back pay for federal employees and public employees in Washington, D.C., who are furloughed or required to work unpaid during a government shutdown.
“The employees must be compensated on the earliest date possible after the lapse ends, regardless of scheduled pay dates,” the law reads. “Employees required to work during the lapse in appropriations may use leave.”
But a new memo from the Office of Management and Budget (OMB) is suggesting that law has been misinterpreted in the past and does not automatically ensure furloughed workers are compensated once the government reopens.
The White House memo cites the amended version of the 2019 law, which added a phrase saying furloughed workers will receive back pay “subject to the enactment of appropriations Acts ending the lapse.” The White House is interpreting that phrase to mean money for those workers must be specifically appropriated by Congress, according to Axios.
The memo’s interpretation of the law is at odds with guidance from the Office of Personnel Management (OPM) issued last month ahead of the shutdown.
The guidance addresses “frequently asked questions,” including whether furloughed employees will get paid.
“Yes. After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods,” the guidance states. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”
Some Republicans have pushed back on threats from the White House that federal workers might not be compensated once the government reopens.
“I think it’s a horrible message to send to people who are basically hostages right now to the Democrats shutting down the government, not agreeing to a clean [continuing resolution],” Sen. Thom Tillis (R-N.C.) told reporters about the memo. “I think it’s bad strategy.”
Tillis said the threat sends the wrong message to federal workers, who have been furloughed since Oct. 1 and may need to borrow money just to pay their bills.
“I do think there’s some frustration from the White House, but you’ve got these people who, if they’re members of the credit union, who may be borrowing money to pay their bills,” Tillis said. “Not everybody can draw out of retirement savings or something,” he said.
Sen. John Kennedy (R-La.) told reporters on Tuesday that the president does not get to decide whether furloughed federal workers are entitled to back pay.
“It’s not up to the president,” Kennedy said, when asked about the Trump administration “not necessarily committing to back pay” for the federal workers.
“I mean, his opinion matters, but Congress has got to appropriate the money. Read the Constitution,” he continued, according to a video posted online by a CBS News reporter.
Asked specifically about the argument in the memo, however, Kennedy said, “Well, you need to talk to the White House. I haven’t read the memo.”
Originally published at 11:09 a.m. Oct. 1
