OPM Back Pay Guidance Changes and a New Bill That Could Fix It
back pay rights federal employment government shutdown mspb appeals opm guidance Feb 04, 2026Federal employees may feel relief that the recent shutdown ended, but a quiet change by the Office of Personnel Management (OPM) deserves attention. OPM recently removed language from its shutdown guidance that explicitly referenced guaranteed retroactive pay. That deletion raised understandable concern across the workforce—especially for those who remember the financial fallout of past shutdowns.
Here is the grounded legal reality, without the noise.
Why Back Pay Was Still Guaranteed This Time
Federal employee pay during a shutdown is governed by statute, not by an OPM webpage. After the 2018–2019 shutdown, Congress enacted the Government Employee Fair Treatment Act. That law amended federal statutes to require retroactive pay for both furloughed employees and those required to work (“excepted” employees) once a shutdown ends.
For the shutdown that just concluded, Congress went a step further. The funding legislation that reopened the government expressly reiterated that agencies must provide back pay to federal employees. From a legal standpoint, the footing for this shutdown was solid. Employees were entitled to pay, and agencies were required to issue it.
Why OPM’s Change Still Matters
If the statute is clear, why would OPM remove that language from its guidance?
The answer appears to lie in a broader policy push from the Office of Management and Budget (OMB). OMB has advanced a legal theory suggesting that shutdown back pay is not “automatic” unless Congress explicitly authorizes it each time. OPM’s revised guidance seems to align with that interpretation.
That alignment is troubling—not because it erased existing legal rights, but because it injects uncertainty where none is needed. During politically volatile moments, unclear or incomplete guidance can amplify stress, confusion, and fear among federal employees who are already navigating instability.
The key takeaway is this: employee-protective rights often come from statutes, not agency summaries. OPM guidance can change quickly, sometimes reflecting political priorities rather than workforce stability.
The True Shutdown Fairness Act: A Different Approach
This exact uncertainty is why the True Shutdown Fairness Act matters. Introduced in the House as H.R. 7322 by Representative James Walkinshaw and in the Senate as S. 3165 by Senator Chris Van Hollen, the bill aims to neutralize shutdowns as a financial weapon.
For the remainder of fiscal year 2026, the bill would guarantee that federal employees, service members, and even federal contractors continue receiving paychecks on time during a shutdown—not eventual back pay, but uninterrupted pay. It would also prohibit agencies from using shutdown periods as cover to initiate reductions in force or other disruptive employment actions.
A Practical, Calming Frame
Shutdowns should not be used as leverage against the federal workforce. They should not place mortgages, childcare costs, or credit obligations at risk while political negotiations unfold. Legal clarity reduces nervous-system stress, and predictability allows employees to stay grounded and focused on their work.
For federal employees who want fewer nights wondering whether a paycheck will land, this bill is worth following and discussing. Structural protections matter—especially when guidance shifts without warning.
Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While the author is 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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