The Trump administration is now challenging a 2019 law that guarantees backpay to furloughed federal workers.
In a reversal from established precedent, the Office of Management and Budget has quietly removed references to the Government Employee Fair Treatment Act of 2019 from its shutdown guidance documents. This law, signed by President Trump during his first term following the record-breaking 35-day shutdown, explicitly guarantees retroactive pay for all federal employees affected by any shutdown that began on or after December 22, 2018.
A draft memo from OMB General Counsel Mark Paoletta, argues that the 2019 law “only authorizes backpay for furloughed federal workers” and that “Congress must still appropriate the funds after each shutdown.” This interpretation directly contradicts both the plain language of the statute and the administration’s own previous guidance, which stated that “retroactive pay for period of furlough and excepted work will be provided after the lapse ends as required by law.”
When pressed about backpay for the approximately 750,000 furloughed workers, President Trump stated Tuesday, “I would say it depends on who you’re talking about. 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.”
Senate Majority Leader John Thune (R-SD) and Whip John Barrasso (R-WY) both indicated their understanding that furloughed workers would receive backpay, while Senate Appropriations Committee Chair Susan Collins (R-ME) said Congress had “settled” the backpay issue with the 2019 law. House Minority Leader Hakeem Jeffries (D-NY) declared: “The law is unambiguous—every single furloughed federal employee is entitled to back pay, period.”
Adding another element to the current shutdown, the Trump administration is threatening to use the funding lapse to implement massive permanent layoffs through Reductions in Force (RIF).
A Sept. 24 OMB memo directed agencies to consider RIF notices for employees in programs that meet three criteria: discretionary funding lapses, no alternative funding source is available, and the program “is not consistent with the President’s priorities.” This represents a dramatic departure from traditional shutdown procedures, where furloughs have historically been temporary.
The American Federation of Government Employees has filed a lawsuit challenging these planned layoffs, arguing that the administration has overstepped its legal authority.
The shutdown began Oct. 1 after the Senate failed to advance either a Republican-backed continuing resolution that would fund the government through Nov. 21, or a Democratic alternative that included permanent extensions of Affordable Care Act premium tax credits. The House-passed Republican measure received support from 55 senators but fell short of the 60 votes needed to overcome a filibuster.
The primary sticking point remains healthcare provisions. Democrats are demanding a permanent extension of enhanced ACA tax credits that are set to expire at year’s end.
Senate votes on both proposals have repeatedly failed while House Speaker Mike Johnson extended the House recess through Oct. 13.
