The White House said today that layoffs of furloughed federal employees are still being planned if the ongoing government shutdown continues.
On Sunday, White House National Economic Council Director Kevin Hassett said that federal employees would start to be laid off if President Trump decides that negotiations to end the shutdown are “absolutely going nowhere.”
“President Trump and [White House Office of Management and Budget Director] Russ Vought are lining things up and getting ready to act if they have to, but hoping that they don’t,” Hassett said Sunday on CNN’s State of the Union.
Later that day, Trump told reporters when asked when the administration would start firing federal employees that “it’s taking place right now.”
On Monday, White House Press Secretary Karoline Leavitt said during a press briefing that the president was referring to furloughed federal employees.
“The president was referring to the hundreds of thousands of federal workers who have been furloughed as a result of this federal government shutdown, both here at the White House and across the entire federal government,” she said in response to a question from Daily Signal reporter Elizabeth Mitchell.
According to the Congressional Budget Office (CBO), as many as 750,000 federal employees have the potential to be furloughed each day at a total daily cost of $400 million.
Leavitt also said Monday, “The Office of Management and Budget is continuing to work with agencies on who, unfortunately, is going to have to be laid off if this shutdown continues.”
CNN reported that layoffs could still be avoided based on what she said depending on how a scheduled evening vote in the Senate went.
She said, “We’ll see how the vote goes tonight. We hope that the vote will not fail, because this administration wants to reopen the government. We don’t want to see people laid off. But unfortunately, if this shutdown continues, layoffs are going to be an unfortunate consequence of that.”
Because the Senate votes failed Monday evening, the possibility of layoffs has presumably increased.
Unions representing federal employees obviously think the administration’s threat to fire federal employees is serious.
The American Federation of Government Employees (AFGE) and the American Federation of State, County and Municipal Employees (AFSCME) sued the Trump administration before the shutdown officially started, claiming that running RIFs (reduction in force) is illegal if there is a lapse in appropriations.
Both unions are also seeking a temporary restraining order to thwart layoffs.
The Office of Personnel Management (OPM) issued revised guidance shortly after the White House announced its plans to conduct RIFs during the shutdown in which it said that agencies are authorized to carry out RIFs and issue RIF notices even during shutdown periods, as these activities are considered excepted functions.
A Q&A from the guidance document said:
Can an agency run a RIF during a shutdown furlough? If so, can an agency issue RIF notices during the period of orderly shutdown before a shutdown furlough?
A. Yes, an agency can run a RIF and may issue RIF notices (prepared in accordance with the requirements in 5 CFR part 351, subpart H) when preparing for a shutdown furlough. OMB has determined that agencies are authorized to direct employees to perform work necessary to administer the RIF process during the lapse in appropriations as excepted activities.
Historically, layoffs have not taken place during a government shutdown. Federal employees have had to go without pay until it is over, but layoffs were unheard of. If the Trump administration does move forward with its plans to use the shutdown as a way to cut the size of the federal workforce, realistically the matter will wind up being settled in court given the unprecedented nature of the situation.
No Back Pay for Federal Employees?
On Tuesday, news broke that the Trump administration was reportedly suggesting that back pay for federal employees after the shutdown may not be guaranteed, however, this would run contrary to past practice since 2019.
A memo from the White House Office of Management and Budget (OMB) says that back pay for federal employees must be provided by Congress if it chooses to do so as part of legislation to fund the government.
The OMB memo argues that the Government Employee Fair Treatment Act of 2019, which mandates payment for federal workers after funding is restored, is not self-executing and requires Congressional action to reopen the government.
In addition to the past precedent of providing back pay, guidance from the Office of Personnel Management says that back pay will be provided to federal employees once a government shutdown ends. OPM’s guidance for shutdown furloughs states:
Will employees who are furloughed get paid?
A. Yes. After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods. (See 31 U.S.C. 1341(c)(2).) Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates. (See 31 U.S.C. 1341(c)(2).) If retroactive pay cannot be provided by the normal pay date for the given pay period, it will be provided as soon as possible thereafter. Retroactive pay is provided at the employee’s “standard rate of pay.” (See Question D.4. Note that retroactive pay may be zero if an employee was scheduled (before the lapse took effect) to be in a nonpay status during the period when the lapse was in effect.)
