OMB deletes reference to law guaranteeing backpay to furloughed feds from shutdown guidance

Updated Oct. 7 at 9:45 a.m.

The Office of Management and Budget on Friday quietly revised a shutdown guidance document to remove references to a law passed in 2019 to guarantee that all federal workers are provided backpay at the conclusion of a lapse in appropriations.

Prior to Oct. 3, OMB’s Frequently Asked Questions During a Lapse in Appropriations document highlighted the Government Employees Fair Treatment Act, the law enacted in 2019 as part of the deal to end the 35-day partial government shutdown during President Trump’s first term to ensure both furloughed and excepted federal workers receive backpay once government funding has been restored. Prior to the law’s passage, Congress had to OK furloughed workers’ backpay following each individual lapse in appropriations.

“All excepted employees are entitled to receive payment for their performance of excepted work during the period of the appropriations lapse when appropriations for such payments are enacted,” stated the document, which was updated Sept. 30 in advance of the current lapse. “The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) provides that upon enactment of appropriations to end a lapse, both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”

But in the latest version of the document, the latter sentence, as well as references to OPM guidance on the topic, were removed. The excerpt’s removal is the only change between the two document versions, aside from the date of last revision.

Conversely, OPM’s shutdown guidance, last updated Sept. 28, still states that furloughed workers will be provided backpay at the conclusion of the lapse.

“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,” OPM wrote. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”

After Government Executive reached out to the White House about the change on Monday evening, Axios on Tuesday reported that senior administration officials were developing guidance that furloughed federal workers are not entitled to back pay. The White House officials said it would take a novel interpretation of the back pay law and argue it applied only to the 2019 shutdown.  

The 2019 back pay measure—which Trump signed into law—explicitly stated that it applied to any employee furloughed during “any lapse in appropriations that begins on or after December 22, 2018.” Previously, Congress had to affirmatively pass legislation after each shutdown to ensure furloughed workers were retroactively paid. 

More than 620,000 employees are currently furloughed, a number that will continue to climb as the shutdown drags on.  

Sen. Chris Van Hollen, D-Md., who helped write the 2019 back pay measure and shepherd it into law with then-Sen. Ben Cardin, D-Md., said the language of the statute left no room for interpretation. 

“The law is the law,” Van Hollen said. “After the uncertainty federal employees faced in the 2019 Trump Shameful Shutdown, Sen. Cardin and I worked to ensure federal employees would receive guaranteed back pay for any future shutdowns. That legislation was signed into law—and there is nothing this administration can do to change that.”

Matt Biggs, national president of the International Federation of Professional and Technical Engineers, described OMB’s decision to remove reference to the law “highly suspicious.”

“The Federal Employee Fair Treatment Act is bipartisan law that has been in effect since 2019, and one that passed the House overwhelmingly with only seven no votes, passed the Senate on a voice vote without a single senator raising a concern, and was signed by President Trump,” he said. “Despite the OMB director’s clear disdain for our federal workforce, he can’t unilaterally ignore a law that overwhelmingly passed both chambers of Congress and was signed by President Trump himself. The OMB needs to stop playing games with the livelihoods of federal workers and their families.”

This story has been updated with additional comment.