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OMB Memo Challenges Federal Back Pay Guarantees

back pay rights federal employment mindfulness at work omb legal opinion shutdown law Oct 08, 2025

A draft legal opinion from the Office of Management and Budget (OMB) is quietly testing the foundation federal employees have relied on for years: that you’ll receive back pay after a government shutdown.

The memo reportedly claims that furloughed employees are not guaranteed automatic retroactive pay unless Congress explicitly writes it into the bill that ends the shutdown. Under this view, excepted employees who worked would still be paid, but furloughed colleagues could be left waiting—or worse, left out.

That reading upends what most believed the 2019 Government Employee Fair Treatment Act (GEFTA) settled once and for all.

What the Law Actually Says

When Congress passed GEFTA, it amended the Antideficiency Act to ensure that both furloughed and excepted employees “shall be paid” for the shutdown period “at the earliest date possible after the lapse ends.” The phrase OMB fixates on—“subject to the enactment of appropriations Acts ending the lapse”—is best read as a timing clause, not a conditional loophole.

Put simply: the law prevents agencies from paying employees until funding is restored—but once that happens, payment isn’t optional.

Why OMB’s Reading Doesn’t Hold Up

Plain text: “Shall be paid” is mandatory. Congress didn’t say “may be.”
Statutory design: GEFTA treats furloughed and excepted workers alike. Splitting them contradicts the structure Congress deliberately chose.
Legislative purpose: Lawmakers passed GEFTA to end back-pay uncertainty. Reopening that debate ignores the statute’s very reason for being.
Administrative precedent: Every agency since 2019—including OMB itself—told employees they would receive back pay. Quietly reversing that without a reasoned explanation defies the Administrative Procedure Act.
Appropriations logic: Congress doesn’t need to add a “back pay clause” each time. When it restores funding, those salary accounts revive automatically, and GEFTA makes the payment obligation clear.

What This Means for You

If OMB sticks to this new interpretation, the next shutdown-ending bill could become a political and legal battlefield. Employees denied back pay would likely sue in the Court of Federal Claims, and unions would have strong grounds to challenge the reversal.

For now, the safest reading—and the one most consistent with law, history, and fairness—is that furloughed federal workers are still guaranteed their pay once the shutdown ends. OMB’s draft treats a simple timing phrase like a trapdoor, and the fallout could erode trust across the civil service.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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