September 27, 2023: With Congress’ present budget impasse potentially leading to an imminent lapse of appropriations starting October 1, 2023, a review of what will happen to federal employees’ pay in the event of a furlough is timely.
Historically, when a partial or total government shutdown occurred due to a lapse in appropriations, most furloughed federal employees were not guaranteed back pay for the furlough period (although “excepted employees” who were required to work without pay during the furlough were guaranteed back pay after the budget was ultimately approved). Instead, back pay for non-working furloughed employees had to be approved ad hoc by Congress for each such furlough. While back pay was often approved, its approval was not guaranteed, increasing stress on furloughed federal employees.
However, in 2019, Congress passed Public Law 116-1, the Government Employee Fair Treatment Act of 2019, as previously discussed on this blog. This statute, codified at 31 U.S.C. § 1341(c), guarantees federal employees—whether or not they are furloughed—back pay once Congress approves appropriations, whether by continuing resolution or approval of a new budget for an affected agency. However, Congress has to approve appropriations to pay federal employees first, leaving federal employees (even exempt employees who have to continue working without paychecks during the shutdown to keep essential operations open.
Unfortunately, the statute does not provide for interest on the delayed payment in its express text. Attempts in the courts to seek interest under the Back Pay Act for delay in payment so far have not proven successful. For example, a lawsuit stemming from the 2019 shutdown resulted in a 2-1 split decision by the Federal Circuit, with the panel majority finding that interest (and other Back Pay Act remedies) were not available for the delay in payment. See, e.g., Abrantes v. United States, 54 F.4th 1332 (Fed.Cir. 2022).
If you are a federal employee affected by furloughs and wish to discuss your rights, please consider contacting Gilbert Employment Law to request an initial consultation.