Shutdown question

[lp101]

Current ALJ here. We had our shutdown meeting yesterday. During the meeting, we were told that if we wanted to be absent (sick, vacation, etc.), we could either request to be placed in furlough status or request to use paid leave. If approved for furlough status, accrued leave would not be used and we would get retroactive pay for that time once the shutdown was over. If approved to use paid leave, our leave balance would be deducted after shutdown was over. It was implied that furlough status would be granted absent some extenuating circumstance.

Seems like a much better deal to get furlough status that use paid leave, but our HOD said (without explaining why) that if he were in that position he would use paid leave.

Is there some advantage to using the paid leave route over the furlough route? Interested because I’m going on a family trip next week and I highly doubt we’ll be done by then.

[hopefalj]

I don’t believe there is any guarantee that you’ll be paid for furlough, though retroactive pay has been given for that in the past. Using paid leave would result in back pay. Someone better versed in this can and should correct me if I’m wrong about the distinction.

[FrogEsq]

Just got this from the AALJ:  

Please note that you do NOT have to request leave in order to be excused from duty during a shutdown. This is because federal employees are guaranteed pay regardless of whether they are deemed excepted or placed in furlough status. 31 U.S.C. § 1341(c)(2). Indeed, OPM guidance advises that “We expect that excepted employees generally will not choose to use paid leave under 31 U.S.C. 1341(c)(3) because 31 U.S.C. 1341(c)(2) provides retroactive pay for furlough periods without charge to leave.

[lp101]

Looks like I may not need to worry about it for 45 days. Thanks all!

[judgechamberlain]

I can’t find a URL right at the moment but after the January 2019 shutdown, a law was enacted to guarantee back pay for federal workers.

[prescient]

Yea I’ve been confused this time. Why wouldn’t everyone just ask to be furloughed if they have to backpay ?

[Top Tier]

Sept 30, 2023 8:18:46 GMT -5 lp101 said:

Current ALJ here. We had our shutdown meeting yesterday. During the meeting, we were told that if we wanted to be absent (sick, vacation, etc.), we could either request to be placed in furlough status or request to use paid leave. If approved for furlough status, accrued leave would not be used and we would get retroactive pay for that time once the shutdown was over. If approved to use paid leave, our leave balance would be deducted after shutdown was over. It was implied that furlough status would be granted absent some extenuating circumstance.

Seems like a much better deal to get furlough status that use paid leave, but our HOD said (without explaining why) that if he were in that position he would use paid leave.

Is there some advantage to using the paid leave route over the furlough route? Interested because I’m going on a family trip next week and I highly doubt we’ll be done by then.

In case we find ourself back in the same spot come November 17th:

As explained to me, in times past employees who took paid leave during a shut down received both retroactive regular pay and had the paid leave taken during the shutdown restored. So in effect it was 'double dipping.' 

Since then, however, Congress and the then President passed the Government Employee Fair Treatment Act of 2019:

31 USC 1341(c)(2): Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee's standard rate of pay, 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.

31 USC 1341(c)(3): During a covered lapse in appropriations, each excepted employee who is required to perform work shall be entitled to use leave under chapter 63 of title 5, or any other applicable law governing the use of leave by the excepted employee, for which compensation shall be paid at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 923; Pub. L. 101–508, title XIII, §13213(a), Nov. 5, 1990, 104 Stat. 1388–621; Pub. L. 116–1, §2, Jan. 16, 2019, 133 Stat. 3; Pub. L. 116–5, §103, Jan. 25, 2019, 133 Stat. 11.)

The interpretation of these statutes, in pari materia, is that:

1. All furloughed employees get paid retroactively, for not working, after appropriations are passed;

2. All excepted employees are paid retroactively, for working, after appropriations are passed;

3. All excepted employees may request to be temporarily furloughed for specified absences (that may be granted or denied by management at their discretion based upon business needs), and will be paid for the furlough periods approved;

4. All excepted employees may request paid leave during the shutdown, but that leave will be deducted from their leave balance and not restored, after appropriations are passed.

So yes, it appears that it would be more beneficial to first request to be furloughed for a period of absence before using paid leave, but do not expect a request to be furloughed for the entire period of the shutdown to be approved as that request would most likely be denied. 

Although the Act seems to remedy the issue of exempted employees being paid both regular pay and having their paid leave restored for the same time, it also now creates a bigger issue of why should any employee be "furloughed" at all when all Federal  employees are going to be paid once appropriations are passed.

It could be argued that if every employee is going to be paid after appropriations are passed, then all employees should work during a shutdown.  Otherwise, we have fraud, waste, and abuse on a grand scale.  Why should the taxpayers (and the Government) not get what they are paying for.

[prescient]

Oct 2, 2023 22:12:52 GMT -5 Top Tier said:

Sept 30, 2023 8:18:46 GMT -5 lp101 said:

Current ALJ here. We had our shutdown meeting yesterday. During the meeting, we were told that if we wanted to be absent (sick, vacation, etc.), we could either request to be placed in furlough status or request to use paid leave. If approved for furlough status, accrued leave would not be used and we would get retroactive pay for that time once the shutdown was over. If approved to use paid leave, our leave balance would be deducted after shutdown was over. It was implied that furlough status would be granted absent some extenuating circumstance.

Seems like a much better deal to get furlough status that use paid leave, but our HOD said (without explaining why) that if he were in that position he would use paid leave.

Is there some advantage to using the paid leave route over the furlough route? Interested because I’m going on a family trip next week and I highly doubt we’ll be done by then.

In case we find ourself back in the same spot come November 17th:

As explained to me, in times past employees who took paid leave during a shut down received both retroactive regular pay and had the paid leave taken during the shutdown restored. So in effect it was 'double dipping.' 


So yes, it appears that it would be more beneficial to first request to be furloughed for a period of absence before using paid leave, but do not expect a request to be furloughed for the entire period of the shutdown to be approved as that request would most likely be denied. 

Although the Act seems to remedy the issue of exempted employees being paid both regular pay and having their paid leave restored for the same time, it also now creates a bigger issue of why should any employee be "furloughed" at all when all Federal  employees are going to be paid once appropriations are passed.

It could be argued that if every employee is going to be paid after appropriations are passed, then all employees should work during a shutdown.  Otherwise, we have fraud, waste, and abuse on a grand scale.  Why should the taxpayers (and the Government) not get what they are paying for.

What if the shutdown lasted for a month? What about 6 months? Where’s the line where expecting employees to work but not get paid “until the shutdown ends” becomes unreasonable? Even with backpay, you’re not getting paid any interest on the delayed payments so we aren’t being made completely whole

[recoveringalj]

The Government Employee Fair Treatment Act only allows employees to be paid retroactively. It makes shutdowns even more nonsensical than they were before. It does nothing for folks who work paycheck to paycheck (which I last heard was 60%) and who have to have money for food and gas. Maybe ALJs can weather these storms as inconveniences (assuming they are short), but I doubt most of the support staff can. If you doubt it, perhaps have a conversation with them about it. The idea that we require LEOs, firefighters, border patrol, prison guards, nurses, air traffic controllers etc. to carry on as if they were getting paid is mind boggling. And given the current climate between labor and employers nationwide—it’s just tone deaf.

[Gaidin]

I mean shutdowns are a modern phenomenon. Prior to 1980 government just kept operating. Then Reagan's first AG wrote a memo. A memo that wasn't consistently applied until the 90's and now boom.

Of course it looks like Congress is largely trying get back to that simpler time.

A better way to do it would be to continue government operations at existing levels. Except congressional and presidential salaries would cease until such time as the government was funded and that forfeited salaries would not be recoverable.

The people causing the problem would be impacted but Average Jill and Bill get to continue trying to survive.

[jagvet]

Oct 4, 2023 10:41:50 GMT -5 Gaidin said:

I mean shutdowns are a modern phenomenon. Prior to 1980 government just kept operating. Then Reagan's first AG wrote a memo. A memo that wasn't consistently applied until the 90's and now boom.

Of course it looks like Congress is largely trying get back to that simpler time.

A better way to do it would be to continue government operations at existing levels. Except congressional and presidential salaries would cease until such time as the government was funded and that forfeited salaries would not be recoverable.

The people causing the problem would be impacted but Average Jill and Bill get to continue trying to survive.

Mostly accurate.  However, in 1974, due to some near-shutdowns because of sloth in passing bills, Congress changed the federal fiscal year from ending June 30 to ending September 30, effective 1976.  I was clerking at a US Attorney's office in 1976, and there was panic and mass confusion among federal employees about the transition that summer (I forget if it was a short transition quarter or a fifth quarter added on).  Would paychecks be processed? Budgets approved? The reason was to give Congress extra time to approve budgets.  Except for the first year or two, it never worked. 

Avoiding shutdowns only worked from the 1970s through the 90s because single-party control of both houses allowed budgets to be rammed through by the Speaker and Majority Leader with lots of pork and concealed items.  When Congress became bipartisan after 1994, the process opened, and the price of that is more debate and deliberation, sometimes resulting in a shutdown.  I can't say the old system was better.  There was a lot of unaccountable spending.

[Gaidin]

Oct 5, 2023 14:19:25 GMT -5 jagvet said:

Oct 4, 2023 10:41:50 GMT -5 Gaidin said:

I mean shutdowns are a modern phenomenon. Prior to 1980 government just kept operating. Then Reagan's first AG wrote a memo. A memo that wasn't consistently applied until the 90's and now boom.

Of course it looks like Congress is largely trying get back to that simpler time.

A better way to do it would be to continue government operations at existing levels. Except congressional and presidential salaries would cease until such time as the government was funded and that forfeited salaries would not be recoverable.

The people causing the problem would be impacted but Average Jill and Bill get to continue trying to survive.

Mostly accurate.  However, in 1974, due to some near-shutdowns because of sloth in passing bills, Congress changed the federal fiscal year from ending June 30 to ending September 30, effective 1976.  I was clerking at a US Attorney's office in 1976, and there was panic and mass confusion among federal employees about the transition that summer (I forget if it was a short transition quarter or a fifth quarter added on).  Would paychecks be processed? Budgets approved? The reason was to give Congress extra time to approve budgets.  Except for the first year or two, it never worked. 

Avoiding shutdowns only worked from the 1970s through the 90s because single-party control of both houses allowed budgets to be rammed through by the Speaker and Majority Leader with lots of pork and concealed items.  When Congress became bipartisan after 1994, the process opened, and the price of that is more debate and deliberation, sometimes resulting in a shutdown.  I can't say the old system was better.  There was a lot of unaccountable spending.

I don't really have a problem with requiring them to pass a budget. I just think shut downs are incredibly wasteful and they have basically eliminated the actual shut down. A better way to incentivise them to actually pass a budget is to make them lose pay. The taxpayers don't lose government services and employees don't worry about paying their bills. Instead the people who create the mess lose until they clean it up. It's like with a teenager.

[Legal Beagle]

If you are furloughed, you do not work. If you are excepted, you work and do not get paid. If everyone were furloughed, then nobody would show up at work. Thus, if you are in OHO, you will need to ask to be furloughed, and it is not guaranteed that the request would be granted. It would be evaluated "based upon business needs." In other words, if there were 60 hearings scheduled for week 1 and all the ALJs wanted to be furloughed, it would not happen.

[Gaidin]

Oct 5, 2023 17:39:00 GMT -5 Legal Beagle said:

If you are furloughed, you do not work. If you are excepted, you work and do not get paid. If everyone were furloughed, then nobody would show up at work. Thus, if you are in OHO, you will need to ask to be furloughed, and it is not guaranteed that the request would be granted. It would be evaluated "based upon business needs." In other words, if there were 60 hearings scheduled for week 1 and all the ALJs wanted to be furloughed, it would not happen.

Unless you're already scheduled for leave the business needs are going to keep ALJs from getting furloughed. Which I don't disagree with until we start actually missing paychecks.

[Top Tier]

Two interesting reads on the topic...

SSA Shutdown FY24 contingency-plan-08-14-23.pdf (200.64 KB)

And what appears to be a catalyst to the current situation:

Civiletti op-olc-v004a-p0016_0.pdf (123.36 KB)

How does one dated Attorney General opinion receive such weight commensurate with a Federal Statute?

[bettrlatethannevr]

I doubt that many agency shutdown plans concerning identifying excepted employees - especially OHO - would survive judicial scrutiny actually interpreting the federal statute. Because these things are usually relatively short to my knowledge none has ever gotten that far. The OHO shutdown plan is a perfect analog to everything else this agency does - it’s calculated entirely on desired outcome rather than actual facts.