This article has been updated since it was first published.
Bills that recently failed to advance in the Senate show how the contrasting approaches of Republicans and Democrats to pay federal employees during the ongoing partial government shutdown.
The True Shutdown Fairness Act (S. 3039) was introduced in the Senate by Senator Chris Van Hollen (D-MD). It proposes paying all federal employees, military service members and government contractors during the shutdown.
While federal employees are guaranteed back pay under the Government Employee Fair Treatment Act of 2019, they still have to go without their regular paychecks during a government shutdown. The back pay doesn’t come until after the shutdown ends, and this creates a bigger financial burden the longer a shutdown lasts. As the 2019 law states, the back pay is issued “at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.”
Federal employees missed their first full paychecks last week because of the partial government shutdown. There were some media reports that some federal employees were visiting food banks in Washington, DC for support while having to go without pay the longer the shutdown continues. Others have turned to various side jobs to help make ends meet during the shutdown such as driving for ride sharing services or doing consulting work.
The True Shutdown Fairness Act also contains language to prohibit federal agencies from running RIFs (reduction in force) during the government shutdown.
The legislative text also adds that none of the funds in the bill may be used to “place any employee of an agency in administrative leave for more than 10 work days in any calendar year.” Voluntary separation payments would be unaffected, however.
A second bill that failed to advance in the Senate last week was the Shutdown Fairness Act, sponsored by Senator Ron Johnson (R-WI). This bill would pay excepted federal employees who are required to work during the shutdown. It also would apply to future government shutdowns.
Another bill in the mix was the Military and Federal Employee Protection Act (S. 3043), introduced by Senator Gary Peters (D-MI). His bill would authorize a one time appropriation to pay all military service members, federal employees and contractors to receive the pay that they have missed so far during the shutdown. However, it would not provide pay beyond the date of enactment.
Johnson blocked both Van Hollen’s and Peters’ bills, arguing that they were too complex to be approved by unanimous consent.
Despite none of the bills advancing, there are still ongoing efforts to reach a compromise.
According to Fox News, there is now reportedly an effort between Van Hollen and Johnson to bring a new version of the Shutdown Fairness Act up for a vote in the Senate, although no additional details on what that bill would contain were provided. Presumably, it would be a compromise of some sort between the two bills.
The debate over running RIFs in the shutdown seems to be a particularly contentious point in the two bills.
According to NPR, Johnson said, “I don’t think we should limit the president’s ability, the chief executive’s ability, to properly manage the federal government, and make the tough decisions sometimes to reduce the workforce.”
However, Van Hollen said, “We certainly shouldn’t set up a system where the president of the United States gets to decide what agencies to shut down, who to pay and who not to pay, who to punish, who not to punish.”
Johnson told CBS News late last week that one key difference between his bill and Van Hollen’s is that his would apply to future shutdowns as well as the current one, emphasizing that he wants a permanent solution on paying federal employees during a shutdown.
Regarding negotiating a path forward, he said, “The way to do it [pass the legislation] is get on the bill and then start working out the differences and hopefully pass it next week. Now, I fear it won’t get cloture. That doesn’t mean the discussions won’t continue. I talked to both Sen. Van Hollen and Sen. Peters. We’ll get our staffs working on this, and see if we can iron out differences, and maybe we can come to an agreement next week.”
According to The Hill, Senate Democrats are open to Johnson’s new proposed legislation this week. The bill would pay all federal employees during the shutdown, but would still not prohibit RIFs from taking place. That is still a point of contention and something Democrats have to discuss.
However, as of right now, there is a court injunction stopping the RIFs from taking place, although that could change as the case moves forward.
As of Tuesday afternoon, a 13th attempt to advance a continuing resolution failed in the Senate.
How Pay for Federal Employees Works During a Government Shutdown
According to guidance from the Office of Personnel Management (OPM), both excepted (those required to work) and non-excepted (those furloughed) federal employees are entitled to receive pay after a partial government shutdown.
Regarding excepted employees, OPM states:
Will employees performing excepted work be paid for performing such work during a shutdown furlough? If so, when will excepted employees receive such payments?
A. Yes. After the lapse in appropriations has ended, employees who were required to perform excepted work during the lapse will receive retroactive pay for those work periods. (See 31 U.S.C. 1341(c)(2).) Retroactive pay is provided at the employee’s “standard rate of pay.” If the retroactive pay cannot be provided on the normal pay date for the given pay period, it must be provided at the earliest date possible after the lapse ends.
And for those furloughed:
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.”
