Unions, Tax Returns and the Shutdown

The IRS is recalling additional employees back to work to process tax returns. The union agreement may provide a basis for not returning to work until the shutdown ends.

The National Treasury Employees Union (NTEU) represents about 70,000 federal employees who work at the Internal Revenue Service (IRS).

The number of these employees being called back to work by the agency in order to process tax returns will be quickly expanding to about 46,000. And, while these employees will be paid once the shutdown ends, they apparently will not be paid until that occurs.

“There is no doubt the IRS needs to get ready for the 2019 filing season that starts Jan. 28, and IRS employees want to work. But the hard, cold reality is that they’ve already missed a paycheck and soon they’ll be asked to work for free for as long as the shutdown lasts,” according to NTEU’s National President, Tony Reardon.

Request Denied in Court

In a press release, the union contended, “The mass call back of IRS workers illustrates why NTEU’s lawsuit challenging the administration’s expanding effort to spend money that Congress has not appropriated is timely.”

But, in a decision issued on January 18, 2019, the court denied a request for a temporary restraining order (TRO) concluding “it would be profoundly irresponsible under these circumstances….for me to grant that TRO. At best, it would create chaos and confusion—at worst, catastrophe!”

While he denied the requests for a TRO, the judge has ordered an expedited court schedule for the plaintiffs to brief their pending motions seeking a preliminary injunction. Oral argument is scheduled for January 31st.

Labor Agreement May Impact Tax Refunds

The union is now raising the possibility that a number of employees will not return to work as ordered by the federal government to process the tax returns.

“After a month with no pay, real hardship does exist for IRS employees including not having the money needed to get back and forth to work or to pay for the child care necessary to return to work right now,” the NTEU president said in a statement to CBS MoneyWatch.

The labor contract between the IRS and NTEU has a separate article on furloughs. The union agreement reads:

All Service employees will be furloughed except for those employees performing excepted functions or those employees whose positions are exempt….The Employer will consider an employee’s request not to work due to a hardship.

According to the Washington Post, a few hundred employees have requested and received a hardship exemption. How many additional employees may use this as a way to avoid returning to work with the latest recall remains to be seen. The agency does not have to approve an employee’s request, although denying the request could lead to the filing of a grievance and an arbitration hearing at some point. Presumably, the argument would be made that the agency did not adequately consider an employee’s hardship in denying the request.

Since the employees are not being paid until after the shutdown ends, a hardship request would likely entail an agency employee working temporarily at another job in order to have an income during the shutdown.

The longer the shutdown continues, the more frequently issues such as this will show up in different agencies. Hopefully, Congress will work with the president to reach a resolution sooner rather than later.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47