Will History Repeat Itself? Federal Employees Should Not Rule Out Possibility of 2019 Pay Raise

A pay raise is still a possibility this year despite the president’s pay freeze. The author explains how this would work.

With all the talk of the partial government shutdown and funding for border security, it is crucial to seek possible solutions for federal civilian employees, many of whom are receiving delayed paychecks this year.

Politics aside, federal civilian employees need answers. Much has been written about the recent partial government shutdown and whether or not the next spending bill will include funding for a particular issue (read: border security). 

Rather than focus on the short-term stumbling blocks involving the shutdown, I wanted to look at a more impactful issue that potentially affects all civilian federal employees. Could federal employees still get a pay raise in 2019, and if so, how would this work? 

On December 22, 2018, President Donald Trump instituted a pay freeze for federal civilian employees. The Executive Order,  No. X19-10108, “Adjustments of Certain Rates of Pay” (the Order), sets forth that non-military federal employees’ pay rates will remain unchanged through 2019.

The Office of Personnel Management has issued pay tables for 2019 pursuant to the Order. These tables make it clear the 2019 pay scales have not changed from the 2018 rates. As it currently stands, the freeze is in effect—for now.

Given the partial government shutdown and its effect on federal civilian employees’ pocketbooks, the pay freeze has been met with criticism by federal employees, unions, and their supporters.

The National Treasury Employees Union (NTEU) issued a statement by NTEU National President Tony Reardon, which described the pay freeze as “pouring salt into the wound. It is shocking that federal employees are taking yet another financial hit. As if missed paychecks and working without pay [during the partial shutdown] were not enough, now they have been told that they don’t even deserve a modest pay increase.” NTEU represents 150,000 employees at 33 federal agencies and departments. 

Although the Order sets forth that federal workers will not receive a raise, a pay increase for federal civilian employees might still be possible. Democratic lawmakers have said they plan to overrule the Order and give federal workers a pay increase, retroactive to the beginning of 2019. The question in many folks’ minds is whether or not this is even possible. The short answer is yes, though whether or not it is probable is another question.

We’ve actually been here before. In 2004, Congress retroactively instituted a pay raise for federal civilian employees. On January 23, 2004, the Senate passed a spending bill which, importantly, contained a 4.1 percent pay raise for federal employees, retroactive to January 1, 2004. Thus, the retroactive nature of such a pay raise should not pose any issues to federal civilian employees hoping for a pay raise.

However, the situation in 2004 was a bit different from the current scenario. As mentioned, President Trump has issued an Executive Order freezing all pay for non-military federal employees. In 2004, President George W. Bush did not issue an Order freezing pay. In this instance, President Bush’s Order set forth a 2 percent raise, which Congress subsequently “overruled” by increasing that figure to a 4.1 percent pay raise for federal civilian employees. President Trump’s Order, a blanket pay freeze, adds a wrinkle to any prediction as to whether or not a retroactive raise would be successful. 

First, it is unclear whether or not Congress even has the authority to override an Executive Order under these circumstances.

Secondly, constitutional questions aside, any appropriations bill will need to be signed by President Trump. Would he be willing to sign a bill that directly contradicts his own Executive Order? Many would say no. Others would suggest that the Executive Order was part of a larger negotiation strategy employed by the White House, and that funding a retroactive pay raise will not be a deal breaker.

Given the more publicized and contentious issues surrounding the shutdown and this next appropriations bill, I believe that a pay raise for federal civilian employees is still possible.

Federal employees seeking clarification about how the government’s pay freeze affects them should consult with an attorney who is knowledgeable in federal employment law.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.