White House floats no back pay for some furloughed federal workers despite 2019 law

President Donald Trump is floating the possibility that some of the roughly 600,000 furloughed federal workers could be denied back pay once the government reopens, despite a 2019 law intended to ensure federal employees are compensated after a shutdown.

Speaking in the Oval Office on Tuesday, Trump appeared to publicly back a draft White House memo that includes an argument for denying workers pay.

"I would say it depends on who we're talking about," Trump said. "I can tell you this, the Democrats have put a lot of people in great risk and jeopardy, but it really depends on who you're talking about. But for the most part, we're going to take care of our people. There are some people that really don't deserve to be taken care of, and we will take care of them in a different way."

When pressed on the legality of such a move, Trump said,  "What the law says is correct and I follow the law."

Trump was responding to questions about a draft memo from the Office of Management and Budget, which was first reported by Axios and confirmed by a senior White House official not authorized to discuss the memo which has not been publicly circulated.

The fight over federal worker pay is the latest salvo in the Trump administration's efforts to force Democrats to vote for a clean continuing resolution and drop their demands to extend health care subsidies for millions of Americans.

The memo's legal argument contradicts guidance issued by the Office of Personnel Management and the wording of a 2019 law signed by President Trump during his first term that explicitly guarantees federal workers "shall be paid" when a shutdown ends, whether they were furloughed or continued working.

The Government Employee Fair Treatment Act of 2019, a bipartisan law enacted after the record 35-day shutdown in 2018, added language to the Antideficiency Act that automatically applied back pay to federal employees for "any lapse in appropriations that begins on or after December 22, 2018."

Previously, Congress had to approve retroactive funding after a shutdown with new legislation.

The White House memo notes a clause in the text that says workers shall be paid "at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse" and argues that means Congressional action is required to enact back pay.

Guidance published by the Office of Management and Budget on Sept. 30 did include a reference to the law's automatic restoration of pay.

"The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) provides that upon enactment of appropriations to end a lapse, both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates," the Sept. 30 memo reads. "Additional guidance for agencies on implementing Public Law 116-1 and treatment of pay and leave is available from OPM."

A version updated on Oct. 3 removes that paragraph.

The draft memo is the latest in a multi-pronged pressure campaign from the White House seeking to punish Democrats during the shutdown, including efforts to cancel grant funding for energy projects and hold up transportation funding in states that did not vote for Trump in 2024. The administration has also threatened widespread reduction-in-force efforts at federal agencies which have so far not materialized.

Congress responds

House Speaker Mike Johnson, R-La., told reporters that while he isn't extensively familiar with the plan and hasn't discussed it with the White House, it is possible there may be a legal justification for the draft.

"There are legal analysts who think that is not something the government should do," Johnson said. "If that is true, that should turn up the urgency and the necessity of the Democrats doing the right thing here."

The top Democrat on the Senate Appropriations Committee, Sen. Patty Murray, D-Wash., argued any interpretation to withhold backpay was "lawless."

"They're plotting to try and rob furloughed federal workers of backpay at the end of this shutdown," Murray said in remarks on the Senate floor. "This flies in the face of the plain text of the law, which could not be more clear."

Deepa Shivaram contributed to this report.
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