Furloughed federal employees are not guaranteed back pay after the government shutdown ends, according to a draft White House memo obtained by MeriTalk.
At issue in the memo – which a senior White House official provided to MeriTalk – is the “Government Employee Fair Treatment Act of 2019,” also known as GEFTA. President Donald Trump signed GEFTA into law during the last government shutdown, which lasted 35 days.
The law aims to ensure both furloughed and excepted federal workers receive back pay once government funding has been restored.
However, in the memo, the top lawyer at the White House Office of Management and Budget (OMB) argues that GEFTA and subsequent legislation do not obligate the government to pay furloughed employees.
Mark Paoletta, the general counsel of OMB, claims in the memo that GEFTA created a conditional obligation that requires Congress to take additional action before those payments can be made.
Axios was the first to report on the existence of the OMB memo.
The memo contradicts guidance published by OMB on Sept. 30, which stated that, under GEFTA, “both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”
However, OMB updated its guidance on Oct. 3 to remove any mention of GEFTA.
The memo also contradicts guidance from the Office of Personnel Management (OPM), which states that furloughed workers will be provided retroactive pay “after the lapse ends, as required by law.”
The draft OMB memo has drawn criticism from federal employee unions and lawmakers.
“I was proud to work across the aisle in 2019 to pass legislation that President Trump himself signed to guarantee backpay to federal workers in the event of a shutdown. If OMB chooses thuggish intimidation tactics over following the law, it better prepare to face the American people in court,” Sen. Tim Kaine, D-Va., told MeriTalk in a statement.
In an Oct. 7 post on X, Rep. James Walkinshaw, D-Va., wrote, “The law is clear. Trump signed it. They can’t just invent powers to punish federal workers. End the GOP vacation and stop the illegal threats.”
The American Federation of Government Employees (AFGE), the largest federal worker union in the nation, also slammed the memo.
“The frivolous argument that federal employees are not guaranteed backpay under the Government Employee Fair Treatment Act is an obvious misinterpretation of the law,” AFGE National President Everett Kelley said in a statement.
“It is also inconsistent with the Trump administration’s own guidance from mere days ago, which clearly and correctly states that furloughed employees will receive retroactive pay for the time they were out of work as quickly as possible once the shutdown is over,” Kelley said, adding, “It’s long past time for these attacks on federal employees to stop and for Congress to come together, resolve their differences, and end this shutdown.”