Answering Frequently Asked Questions
Public employees can be furloughed – meaning they are suspended from their positions without pay for non-disciplinary reasons – due to a lack of funding for their agency, necessitating a government shutdown. Government shutdowns can occur in situations where Congress fails to pass necessary budgetary legislation that funds various federal agencies and their employees. When an agreement cannot be reached, often due to partisan infighting, federal employees are left temporarily without pay.
Government shutdowns are relatively infrequent but have most recently occurred in 2013, early 2018, and late 2018-2019. Each of these shutdowns led to mass furloughs of government agencies, with hundreds of thousands of federal employees losing their paychecks. As partisan conflicts continue to intensify with the changing administration, it is not impossible that a new shutdown could occur in the next several years. Below, we review your rights as a furloughed federal employee.
Will I Be Paid During a Furlough?
Unfortunately, no. Being furloughed means that you retain your position, but your job responsibilities are effectively paused. Because your agency does not have adequate funding, they will not be able to pay you. In other words, for the length of your furlough, you will go without a paycheck. Employees of the United States Postal Service (USPS) are an exception, as that agency is self-funded.
While you will not be paid while the government is shut down, employees typically receive retroactive “back pay” for the furlough period once funding has been appropriated by Congress and the stoppage ends. It is important to note that this is not mandated, and employees who do not work during the shutdown are not necessarily entitled to back pay. However, back pay has been offered to non-working salaried federal employees after each major recent shutdown.
For this reason, it may not be wise to apply for unemployment benefits when the government shuts down. Unemployment is managed and issued by individual states, meaning programs are not directly impacted by federal government shutdowns. While federal employees can apply for benefits if they are furloughed, they will most likely need to pay back some or all of their benefits if and when they receive back pay from their federal agency.
Federal employees who are required to work through a government shutdown despite an immediate lack of pay (a category of workers that we will discuss more shortly) are entitled to full back pay for the time that they worked. Again, this distinction at the moment is mostly symbolic, as non-working federal employees are also typically given back pay despite not working. Bipartisan members of Congress have both expressed interest in formalizing a mandate of back pay for all furloughed employees, but such legislation has not yet been passed.
Will I Be Required To Work Without Pay?
That depends. Most public employees will simply not go into work for the length of the furlough. Some “excepted” employees responsible for critical government services must continue to work through a government shutdown even though they are not being paid.
Government agencies get a fair amount of discretion in determining who is considered an “excepted” employee responsible for an “essential” service. Excepted employees typically include TSA agents, prison and law enforcement officers, and a majority of the workforces for both U.S. Customs and Border Protection and the Department of Homeland Security.
If you are determined to be an excepted employee by your agency, you will be expected to continue working without pay when furloughed. The good news is you will be guaranteed backpay when funding is appropriated.
It is possible that the role of excepted employees could change in the near future. Requiring some employees to work without pay has remained controversial, and several unions successfully filed lawsuits against the government after the 2013 shutdown. The court awarded excepted employees double pay for the time worked while furloughed. A new suit is pending for excepted employees impacted by the 2018-2019 shutdown.
Can I Be Terminated while Furloughed?
No, not without process! Unlike employees of private businesses, who can be laid off at the discretion of the employer, federal workers retain their government employee protections when furloughed.
A furloughed public employee has the right to return to their job if the position still exists when the furlough period ends. Should an agency wish to terminate a furloughed worker’s employment, they must undergo the normal process for doing so as if the worker was regularly employed.
We Can Help You Fight Furlough Problems
If you feel your rights have been violated while furloughed, our employment attorneys at Pines Federal want to help. Whether you believe you were improperly terminated during a furlough or were not appropriately compensated for work you did as an excepted employee, our team is ready to help you explore your legal options. You may be entitled to compensation or a reinstatement of your position.
Benefit from our 50 years of legal experience by calling (888) 898-9902 or contacting us online today.