Should Essential Federal Workers Get Paid During Shutdowns? (H.R. 301)

What is H.R. 301?

(Updated April 7, 2021)

This bill — the Providing Pay for Essential Employees Act — would ensure that federal workers deemed essential during government shutdowns receive their pay. Federal workers deemed “essential” include air traffic controllers, Border Patrol agents, and federal law enforcement officials.

Argument in favor

Requiring “essential” federal workers to work without pay during shutdowns is unfair and creates tremendous stress both for the employee tasked with a critical job and those who rely on them. It may also be a violation of the Fair Labor Standards Act to require them to work without pay during shutdowns.

Argument opposed

The government can’t spend money that hasn’t been appropriated, so there’s no way for it to legally pay workers during shutdowns. Essential workers are performing critical tasks like keeping air travelers safe and securing the border that can’t stop just because Congress couldn’t get its act together.

Impact

Essential federal workers; government shutdowns; budget; air traffic controllers; Border Patrol agents; and federal law enforcement officials.

Cost of H.R. 301

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Bob Gibbs (R-OH) introduced this bill to pay essential federal workers during government shutdowns:

“While Democrats continue to play politics with border security, federal employees dedicated to their mission of keeping America safe and our border secure are still going to work knowing they will be missing their paychecks. They should not be caught in the middle of political ploys by politicians who are not serious about securing our border.  If they are working to protect America and the lives of our citizens, they should be getting their paychecks on time. We shouldn’t be forcing these men and women to shoulder the burden of Democrats’ unwillingness to work with President Trump and Congressional Republicans to solve the humanitarian and security crisis on our Southern Border.”

The FBI Agents Association has urged Congress to provide pay for the Dept. of Justice and FBI in order to preserve national security:

“Pay uncertainty undermines the FBI’s ability to recruit and retain high-caliber professionals.  Special Agents are skilled professionals who have a variety of employment options in the private sector. The ongoing financial insecurity caused by the failure to fund the FBI could lead some FBI Agents to consider career options that provide more stability for their families. The men and women of the FBI proudly serve this nation and are honored to protect our country and Constitution from all threats, foreign and domestic. We are confident that our leaders share this commitment to protecting our country and will find a path forward to fund the DOJ and the FBI.  As those on the frontlines in the fight against criminals and terrorists, we urge expediency before financial insecurity compromises national security.”

Minna Kotkin, director of the Employment Law Clinic at Brooklyn Law School, says it’s a clear FLSA violation to require workers to work without pay:

“The Fair Labor Standards Act requires workers to be paid at least the minimum wage for hours they worked in a timely fashion. There is a legitimate claim that [forcing federal employees to work without pay] is violating the Fair Labor Standards Act.”

The Trump administration is using a law called the Antideficiency Act to justify its failure to pay workers. That law says the government can’t spend money that hasn’t been appropriated. However, Kotkin notes that “[t]he Antideficiency Act only goes so far as to say you don’t get paid. It doesn’t say anything about having to work.”

This bill has 19 cosponsors, all of whom are Republicans.

Of Note: During the current shutdown, the American Federation of Government Employees (AFGE) has sued the U.S. government for requiring essential employees to work without pay during the shutdown. AFGE alleges that the government is violating the Fair Labor Standards Act (FLSA) by forcing these employees to work without pay. AFGE president J. David Cox called the requirement that some federal employees work without pay “inhumane”:

"Our nation's heroes, AFGE members and their families deserve the decency of knowing when their next paycheck is coming and that they will be paid for their work. Our intent is to force the government and the administration to make all federal employees whole."

The National Treasury Employees Union (NTEU) has also filed a lawsuit against the Trump administration, seeking back pay, including overtime and damages, for excepted employees required to work during the partial shutdown. Like AFGE, the NTEU also argues that the government’s failure to pay overtime and minimum wages is a direct violation of the FLSA.

In the current shutdown, about 420,000 federal employees across different government agencies are working without pay. As the shutdown continues, the Trump administration keeps designating more and more of the federal workforce essential, ordering workers back to process tax returns, perform safety inspections, and more without pay.

In the 2013 shutdown, a court awarded back pay to federal employees in a class action suit, setting a precedent that indicates the courts seem to agree working without pay is an FLSA violation.

Media:

• Sponsoring Rep. Bob Gibbs (R-OH) Press Release
  
• CNN
  
• CNN (Context)
  
• Yahoo! Finance (Context)