White House memo raises question over back pay for furloughed workers

A draft legal opinion circulating inside the White House suggests as many as 750,000 furloughed federal employees may not be automatically entitled to retroactive pay for time off during the current government shutdown, according to Axios.

The memo, prepared by the Office of Management and Budget and described to reporters by administration officials, advances a narrow reading of the Government Employee Fair Treatment Act of 2019 and argues that retroactive pay is “subject to the enactment of appropriations Acts ending the lapse,” meaning any back pay would require explicit language in the spending measure that ends the shutdown, according to Politico.

The Office of Personnel Management issued guidance before the shutdown saying furloughed employees would receive retroactive pay “on the earliest date possible after the lapse ends,” a position that the OMB draft appears to contradict and that federal employee unions and Democrats quickly questioned, according to The Hill.

House and Senate leaders pushed back against the memo’s interpretation, saying their understanding of the 2019 law is that furloughed workers will receive back pay once the shutdown ends, and lawmakers and union leaders warned of legal challenges if the administration withholds compensation, according to Politico and The Hill.

When asked about back pay at a White House appearance on Tuesday, President Donald Trump said, “I would say it depends on who we’re talking about,” a remark that drew criticism from union officials and congressional Democrats who said the statement undermined statutory protections and longstanding expectations for retroactive pay, according to Axios.

Legal scholars and employment attorneys who reviewed the draft told reporters the OMB position rests on a technical statutory reading that could be vulnerable to challenge in court, and they described an alternative interpretation in which the 2019 amendment addresses timing rather than conditions for payment, according to Politico.

Administration officials characterized the memo as legal analysis under consideration amid ongoing budget negotiations; opponents said the memorandum was part of a broader effort to increase pressure on Democrats over a continuing resolution and a signal the administration might seek to limit payroll liabilities if lawmakers do not act, according to Axios and The Hill.

The dispute leaves hundreds of thousands of federal workers and contractors in limbo over wages and benefits and raises the prospect of litigation or congressional clarification once lawmakers move to fund government operations, according to reporting that first revealed the draft memo and subsequent reactions.