Furloughed workers not guaranteed back pay after shutdown, OMB claims

Furloughed federal workers are not entitled to automatic back pay after the government shutdown ends, the Trump administration’s budget office claimed in a new draft memo obtained by The Washington Post, ratcheting up tensions in Washington over the weeklong closure.

The top lawyer at the White House Office of Management and Budget (OMB) argued in the draft that the law Congress passed and President Donald Trump signed in 2019 that guaranteed back pay to furloughed workers does no such thing.

“The legislation that ends the current lapse in appropriations must include express language appropriating funds for back pay for furloughed employees, or such payments cannot be made,” Mark Paoletta, OMB’s general counsel, wrote to White House budget director Russell Vought.

By that interpretation, furloughed workers would not be paid when this shutdown ends.

Lawmakers are considering a seven-week stopgap measure that would simply extend federal funding at current levels. That legislation passed the House last month but remains hung up in the Senate. It does not include additional language on back pay.

Paoletta’s memo argues that the Government Employee Fair Treatment Act, or GEFTA, and subsequent legislation merely create conditions for Congress to authorize those payments. Lawmakers must also specifically set aside additional money to compensate workers returning from furloughs.

“GEFTA’s directive to pay contingent on the enactment of some future legislation is simply not the type of unconditional obligation that would guarantee, without further action by Congress, that furloughed employees would receive back pay,” the memo states.

Policymakers, including leading appropriators in Congress and House Speaker Mike Johnson (R-La.), had generally interpreted the law in a more straightforward fashion: that new legislation to fund agencies would also automatically pay the government’s employees, whether furloughed or working without pay.

“It is a lucid reinterpretation of the law, but clearly against its intent,” said Robert Shea, a budget expert and former Republican OMB official.

Axios first reported the existence of the OMB memo.

Trump told reporters Tuesday that it wasn’t certain that all workers would get back pay.

“I would say it depends on who we’re talking about,” Trump said. “I can tell you this: The Democrats have put a lot of people in great risk and jeopardy, but it really depends on who you’re talking about. But for the most part, we’re going to take care of our people. 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.” He did not elaborate.

During a shutdown, the White House has broad latitude to determine which federal offices remain open. Federal employees essential to public safety and protecting government property continue their duties, largely unpaid. Others are sent home with strict instructions not to work, although some agencies with alternate sources of funding — such as Social Security and Medicare — continue operating. Roughly 750,000 employees have been furloughed during the shutdown, according to congressional bookkeepers.

Guidance last month from the Office of Personnel Management, which acts as the federal government’s human resources department, to workers and agencies said the 2019 law required the government “to provide retroactive pay for Federal employees affected by a lapse in appropriations as soon as possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.”

Also, multiple agencies have told their workers that they would receive pay once the shutdown ended.

A frequently-asked-questions document on the White House’s website had said as of Sept. 30 that “both furloughed and excepted employees will be paid retroactively.” However, the document was quietly amended Friday to take out the reference to the 2019 law. The trade publication Government Executive first reported the change Tuesday.

Johnson’s website stated that “under federal law, employees are entitled to back pay upon the government reopening.” On Tuesday, though, the House speaker signaled that OMB’s new analysis may alter that stance.

“It is true that in previous shutdowns, many or most of them have been paid for the time that they were furloughed,” Johnson said. He added that “some legal analysts that are saying that might not be appropriate or necessary, in terms of the law requiring that back pay be provided.”

But Senate Majority Leader John Thune (R-S.D.) told reporters that back pay was “a fairly standard practice” and that he wasn’t familiar with OMB’s argument. “My understanding is, yes, that they would get paid,” he said. “I’ll find out. I haven’t heard this up until now.”

Administration officials hope the memo will maximize Republicans’ leverage in shutdown negotiations with Democrats, according to two people familiar with internal talks, both of whom spoke on the condition of anonymity because they were not authorized to discuss the matter publicly. Trump and Vice President JD Vance have threatened imminent mass layoffs of federal employees — from arms of the federal government that Trump called “Democrat agencies” — but have yet to carry out the firings.

Democrats indicated the move might have the opposite effect.

“Honestly, the impact it seems to have had on Democrats here is people kind of digging in their heels harder and not wanting to give an inch to those kind of hollow threats,” Rep. James Walkinshaw (D-Va.) told The Post on Tuesday. “And the latest threat to not pay furloughed federal workers at the end of the shutdown I think is in precisely the same category. The law is just very clear.”

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• Hannah Natanson, Meryl Kornfield and Theodoric Meyer contributed.