Goverment Employee Fair Treatment Act of 2019

On January 16, 2019, President Trump signed the Government Employee Fair Treatment Act of 2019 (S. 24). 

This Act amends section 1341 of title 31, United States Code, to provide retroactive pay for Federal employees
affected by a lapse in appropriations that begins on or after December 22, 2018, as soon as possible after the lapse
in appropriations ends, regardless of scheduled pay dates.  This amendment covers employees affected by the
current and any future lapse in appropriations.
 
New section 1341(c) addresses Federal employees who are furloughed as a result of a lapse in appropriations, as
well as Federal employees who are required to perform excepted work activities during a lapse.  Retroactive pay
will be paid at the employee’s standard rate of pay. 
 
The attachment to this memorandum provides guidance to assist agencies in implementing the Act.  We will
provide conforming updates to other U.S. Office of Personnel Management (OPM) shutdown furlough guidance
documents as soon as possible.
 
Questions
 
Agency headquarters-level human resources offices may contact OPM at pay-leave-policy@opm.gov.
 Employees should contact their agency human resources offices for assistance.
 
cc:  Chief Human Capital Officers (CHCOs), Deputy CHCOs, and Human Resources Directors
 
Attachment:  Guidance on Implementation of S. 24, the “Government Employee Fair Treatment Act of
2019”
Legislation
 

On January 16, 2019, President Trump signed the “Government Employee Fair Treatment Act of 2019” (S. 24).
This Act can be found at https://www.congress.gov/bill/116th-congress/senate-bill/24.  The Act amends the
Antideficiency Act provision codified in 31 U.S.C. 1341 to authorize retroactive pay for Federal employees
affected by a lapse in appropriations.
 
Scope
 
The section 1341 amendments apply to any lapse in appropriations that begins on or after December 22, 2018.
Thus, the section 1341 amendments apply to the current lapse that began on December 22, 2018, and any future
lapse.
 
The section 1341 amendments apply to each employee of the United States Government or of a District of
Columbia public employer.  This guidance deals with application of the section 1341 amendments to employees
of the United States Government.  The term “employee” in this guidance refers to an employee of the United
States Government.
 
The section 1341 amendments do not apply to “exempt” employees or work activities—i.e., employees or work
activities that are not affected by a lapse in appropriations because they are paid through an independent funding
source.     
 
Definition of “Excepted Employee”
 
Under section 1341(c)(1)(D), an “excepted employee” is defined as “an excepted employee or an employee
performing emergency work, as such terms are defined by the Office of Personnel Management” (OPM).
 
In this guidance, the term “excepted employee” includes “an employee performing emergency work.”  OPM
understands the reference to “an employee performing emergency work” to be a reference to an employee
performing work in connection with “emergencies involving the safety of human life or the protection of
property” as described in 31 U.S.C. 1342.
 
OPM is defining “excepted employee” to mean any employee who is authorized to perform work during a lapse
in appropriations as “authorized by law” (including, but not limited to, 31 U.S.C. 1342), as provided under 31
U.S.C. 1341(a)(1)(B) and under guidance concerning lapses in appropriations issued by the Office of Legal
Counsel of the Department of Justice (DOJ OLC) and the Office of Management and Budget (OMB)
implementing that provision of law.  (See the “References” section at the end of this memorandum.)
 
Employees are considered to be “excepted” from a shutdown furlough when they are performing “excepted work
activities” as defined in DOJ and OMB guidance, or when they are approved to use paid leave under section
1341(c)(3).  (See “Treatment of Excepted Employee” section below.)  An employee may be excepted during
certain lapse periods and furloughed during other lapse periods.

For the purposes of this guidance, we consider work performed “by necessary implication” as described in DOJ
OLC guidance to be “excepted” from the furlough.  For example, for the purpose of this guidance, an employee
performing authorized orderly shutdown activities (as described in OMB and DOJ guidance) is considered to be
an “excepted employee” while performing those activities.  Similarly, another example could be an employee
who supports work related to the protection of life or property (e.g., cutting the checks for a benefit program that
is itself fully funded and necessary to preservation of life) would be considered to be performing excepted work. 
 
Treatment of Furloughed Employees
 
Under section 1341(c)(2), an employee who is furloughed as the result of a lapse in appropriations must be paid
for furlough periods that occurred during the lapse.  After the lapse ends, retroactive pay is provided at the
employee’s “standard rate of pay.”  If the pay cannot be provided on the normal pay date for the given pay period,
it must be provided at the earliest date possible after the lapse ends.
 
Consistent with longstanding policies in implementing similar laws, a furloughed employee is not entitled to
retroactive pay for furlough periods if the employee had been previously (before the lapse) scheduled to be in
nonpay status during those periods.  For example, an employee may have scheduled leave without pay (LWOP)
for an extended period or be in a suspension status (i.e., pay suspended based on an adverse action).  In effect,
those already-in-place periods of nonpay status override the furlough status.  The “standard rate of pay” for such
previously scheduled periods of nonpay status is zero. In addition, employees who were directed to perform
excepted work during a lapse in appropriations but failed to report to duty may be placed in absent without leave
(AWOL) status for missed work hours, in accordance with agency policy and procedures.  For such an employee,
the “standard rate of pay” for AWOL hours is also zero.
 
For furloughed employees, the “standard rate of pay” is the pay the employee would have received for the
furlough hours had the lapse in appropriations not occurred and the employee had performed work.  It includes
the following types of payments:
the employee’s rate of basic pay;
overtime and other premium pay for regularly scheduled work;
regular premium payments (such as law enforcement availability pay); and
allowances and differentials payable on a regular basis.
Except for the nonpay status hours described in the second paragraph of this section, the nonpay status furlough
periods are converted to pay status periods with the payment of retroactive pay for those periods.  For the purpose
of any pay, leave, or benefit entitlements, furlough hours for which retroactive pay is received are considered paid
hours of work.  Rules related to periods of nonpay status are not applicable.  For example, furloughed employees
will accrue annual and sick leave as if they had been in pay status during the furlough periods.  The furlough
hours will also be considered to be paid hours of work in applying overtime rules, including the Fair Labor
Standards Act overtime rules.
 
In providing retroactive pay for furlough hours, employees may not be charged paid leave (e.g., annual leave and
sick leave) or other paid time off (e.g., compensatory time off in lieu of overtime, for travel, or for religious
purposes; credit hours under a flexible work schedule).  All paid leave and other paid time off was automatically
cancelled because of the lapse in appropriations.  There is no legal authority to revoke those cancellations and
charge employees for paid leave or other paid time off.

Treatment of Excepted Employees
 
Pay:  Under section 1341(c)(2), an excepted employee who is required to work during a lapse in appropriations
must be paid for those work periods occurring during the lapse.  After the lapse ends, retroactive pay is provided
at the employee’s “standard rate of pay.”  If the pay cannot be provided on the normal pay date for the given pay
period, it must be provided at the earliest date possible after the lapse ends.
 
For excepted employees, the “standard rate of pay” for excepted hours of work is the pay the employee is entitled
to for the actual hours of work under the normally applicable pay rules.  For example, if an excepted employee
performed additional overtime work beyond the normal requirements for his or her job, he/she would be paid for
that actual overtime work.
 
Leave:  Section 1341(c)(3) establishes a new requirement, providing that excepted employees who are required to
perform work during a lapse in appropriations “shall be entitled to use leave” under 5 U.S.C. chapter 63, if
applicable (or under other applicable law if chapter 63 is not applicable), but that compensation for the leave will
be paid after the lapse ends.  The use of such paid leave is subject to the normally applicable rules for the
applicable leave program, including leave request and approval procedures.  While excepted employees have the
option to use their paid leave (i.e., establish entitlement to paid leave to be paid after the lapse ends), they are not
required to use leave to cover periods of authorized absence from work.  Instead, they may choose to remain in
the default status of being furloughed during any such authorized absence during the lapse.  We expect employees
generally to choose to allow the default furlough status to be applied to any approved absence, since section
1341(c)(2) provides retroactive pay for furlough periods without charge to leave.  (See “Treatment of Furloughed
Employees” section for guidance on furlough hours.)
 
References
Letter to the President from Benjamin R. Civiletti, 5 U.S. Op. Off. Legal Counsel 1 (Jan. 16, 1981)—
located at https://www.justice.gov/file/22536/download
Government Operations in the Event of a Lapse in Appropriations, 1995 WL 17216091 (O.L.C. Aug. 16,
1995)—located at https://www.justice.gov/opinion/file/844116/download
Office of Management Budget M-18-15, Revised (Jan. 19, 2018)—located at
https://www.whitehouse.gov/wp-content/uploads/2017/11/m-18-05-Final.pdf
OPM Funding Lapse Information Page—located at www.opm.gov/ShutdownFurlough

Additional Information is Provided Regarding the Government Shutdown

NTEU held a wide-ranging conference call with IRS leaders to seek answers to the questions raised by chapter leaders since the agency’s 2019 Filing Season Shutdown Plan was released.

1. Hardship Requests: Without any question, employees are facing serious financial issues because they have not been paid since December 22, 2018, when the shutdown started.  Now, under the Filing Season plan, the IRS is recalling an additional 36,000 employees to process tax returns and answer calls from taxpayers. We are stressing to the IRS that if an employee claims a hardship of any kind, the IRS should honor the intent of Article 48, Section 1.B, and accept the claim.

The IRS should look for ways to accommodate employees, such as authorizing intermittent furloughs for certain periods of time and even for entire days so employees can mitigate the hardship situations they are currently facing.  We also advised the IRS that if it fails to grant hardship requests, and threatens employees with AWOL or termination, it risks losing many employees altogether, something the agency can ill afford. Employees should not be forced to choose between their job, which isn’t paying them, and enduring the hardship caused by the lack of pay.  We told them they need to approve all hardship requests. We emphasized that the way the agency handles this issue will impact how retention and shape how employees view the IRS as an employer on a long-term basis. Today, the IRS told us that our suggested approach is, in fact, the approach their managers are being instructed to take.

2. Federal Holiday (Martin Luther King, Jr. Day): The agency informed NTEU that excepted employees will be issued another furlough letter to cover MLK day as they will not be required to work next Monday.

3. Back Pay for Employees with Approved Hardship Requests: For employees who are granted a hardship and not required to work as an excepted employee, many chapter leaders asked about whether these employees would be waiving or forfeiting back pay once the shutdown ends.  The IRS confirmed that if an employee recalled under Article 14 or Article 48 requests a hardship, and the hardship is granted, they will still be furloughed employees and receive back pay. As of yesterday, the President signed a bill guaranteeing all furloughed (and excepted) employees back pay.  In that case, an employee called up under either Article who is granted a hardship will receive back pay for the shutdown.

4. Delays to Income Verification Information: During the January 17th conference call with the IRS, the agency assured NTEU that it will continue to work through this problem.  One reason for the delay has been that income verification for many federal agencies is handled by Equifax, and as a result, Equifax is having a difficult time handling the increased need for its services caused by the government shutdown.

5. Furlough Letter: The IRS confirmed that it is working with Wage and Investment (W&I) in order to mail copies of the furlough letter to employees, but it is still determining the best method for accomplishing this.

6. The Inapplicability of RIF Procedures to this Shutdown:  The December 21, 2018 letter issued by CHCO Robin Bailey incorrectly notified employees that they would be subject to RIF procedures if the shutdown lasts more than thirty (30) days.  However, the reductions in force (RIF) furlough regulations are not applicable to emergency shutdown furloughs because the ultimate duration of an emergency shutdown furlough is unknown at the outset and is dependent entirely on Congressional action, rather than agency action. We can assure you that a RIF will not occur as a result of this shutdown.  If the shutdown lasts 30 days, the OPM regulations require the agency to issue a second furlough of employees for another period of up to thirty (30) days.

7. Documentation Needed for Unemployment Compensation: The agency informed NTEU that it has contacted all of its points-of-contact at state unemployment compensation offices and confirmed that the furlough letter or a leave and earnings statement will be considered sufficient.  Nonetheless, the agency agreed to provide all employees with copies of their SF-50. In addition, if an employee does not receive their SF-50 promptly, they can contact the IRS Help Desk for assistance.

8. ”Use or Lose” Leave for Retirees: The agency stated that employees in this situation will be considered for leave restoration and that any leave restored will still be included in their lump sum payment upon retirement. However, this will not happen until after the shutdown ends.

NTEU will continue to provide further updates on each of these issues as soon as they become available. In addition, please continue to check the NTEU website at https://www.nteu.org/shutdown for additional information.  

New Information we've received from the Utah State Unemployment Department.

New Information we've received from the Utah State Unemployment Department.

NTEU Chapter 67  leadership personally delivered letters demanding an end to the shutdown to the offices of Senator Lee and Senator Romney. They also met with a represent from the Utah State Governors office requesting additional relief for essential and non-essential employees to continue receiving unemployment benefits. 

 

In NTEU’s continuing effort to provide the best service to our members we have opened a temporary office in the Marriott-Slaterville City Office. Beginning January 17th until further notice we will be available Mon-Fri 3 PM-5PM at 1570 W 400 N Ogden, UT 84404. We can always be reached at NTEU67.org, NTEU67@gmail.com, Facebook, and Twitter. 

 

Article 48 | Furloughs

Section 1

Shutdown Furloughs Due to Lapse in

Appropriations / Debt Ceiling Limitations

In the event that funds are not available through an

appropriations law or continuing resolution, a shutdown

furlough occurs. Such a furlough may be necessary when

an agency no longer has the funds to operate and must shut

down those activities which are not excepted pursuant to

the Antideficiency Act, 31 U.S.C. §§ 1341 and 1342. 

151

2016 National Agreement | Internal Revenue Service and National Treasury Employees Union Article 48

The following procedures will apply:

A. The Employer will provide written notice to National

NTEU when it is reasonably foreseeable that a

shutdown furlough will occur.

B. All Service employees will be furloughed except for

those employees performing excepted functions or

those employees whose positions are exempt. When

there is more than one (1) qualified employee in the

same position, grade, post of duty, and tour of duty

available for an excepted position, the Employer has

determined that employees will be assigned to the

excepted position by inverse seniority based on enter

on duty (EOD) date. The Employer will consider an

employee’s request not to work due to a hardship. If

the employee’s request is honored, the Employer has

determined that the next employee, meeting the above

criteria, will be assigned to the excepted position.

C. The Service will provide local NTEU Chapters with

one (1) copy of the decision letter together with a

list of those employees who have been designated

as excepted or those employees who are deemed to

be exempt. The local parties will determine the form

of and the timing for delivery of the list. Employees

will be given a written document notifying them of

applicability to the employee.

D. Employees are expected to listen to radio and/or

television broadcasts to learn when an appropriation

or continuing resolution has been signed or when

the debt ceiling has been raised. The Employer and

the Union are free to negotiate, at the national level,

additional methods of notifying employees about

the conclusion of the furlough. Employees will then

be expected to report to work no later than four (4)

hours after that announcement. In the event the

announcement contains instructions on reporting to

work later than that, employees will be expected to

follow those instructions. A liberal leave policy will be

in effect on the day employees are to return to work.

Employees who travel during the time of the furlough

will be expected to return to work in accordance with

the terms of this Article or with the more specific

instructions.

E. If an employee has “use or lose” leave scheduled during

the furlough, the employee and his/her manager

shall make every reasonable effort to reschedule the

expiring leave during the leave year. In the event

that it cannot be rescheduled, the shutdown will

qualify as an exigency of the public business and the

forfeited leave may be restored in accordance with

IRM 6.630.1.3.3.

F. During any fiscal year in which a furlough occurs, the

Service and NTEU shall jointly issue an all-employee

notice with Questions and Answers attached which

will advise employees of the impact of non-pay status

on civil service benefits and programs and which will

address some financial concerns employees may have

when faced with a pay reduction. The Service will

distribute this notice to all employees.

G. All employees will receive from the servicing Personnel

Office a fact sheet describing unemployment benefits

available in their jurisdiction. At a minimum, this notice

will contain information on unemployment benefits

availability, the waiting period, if any, benefits eligibility

requirements, and the location and phone number

of State and/or municipal agencies responsible for

administering the program in the local area.

H. During the period of the furlough employees may

engage in outside employment in accordance with the

“Plain Talk About Ethics and Conduct.” Employees may

not engage in any activity prohibited therein. While

in a non-pay status, such employees may engage in

outside employment without obtaining prior written

permission that is otherwise required. Upon return to

duty status, employees must submit a written request

to engage in outside employment if such activity

continues.

I. When a shutdown furlough impacts the contractual

deadlines of this Agreement,  all parties will

be  provided  one (1) additional day in which to meet

those contractual deadlines for each day of the furlough.

Article 48 | FurloughsSection 1Shutdown Furloughs Due to Lapse inAppropriations / Debt Ceiling LimitationsIn the event that funds are not available through anappropriations law or continuing resolution, a shutdownfurlough occurs. Such a furlough may be necessary whenan agency no longer has the funds to operate and must shutdown those activities which are not excepted pursuant tothe Antideficiency Act, 31 U.S.C. §§ 1341 and 1342. 151
2016 National Agreement | Internal Revenue Service and National Treasury Employees Union Article 48The following procedures will apply:
A. The Employer will provide written notice to NationalNTEU when it is reasonably foreseeable that ashutdown furlough will occur.
B. All Service employees will be furloughed except forthose employees performing excepted functions orthose employees whose positions are exempt. Whenthere is more than one (1) qualified employee in thesame position, grade, post of duty, and tour of dutyavailable for an excepted position, the Employer hasdetermined that employees will be assigned to theexcepted position by inverse seniority based on enteron duty (EOD) date. The Employer will consider anemployee’s request not to work due to a hardship. Ifthe employee’s request is honored, the Employer hasdetermined that the next employee, meeting the abovecriteria, will be assigned to the excepted position.
C. The Service will provide local NTEU Chapters withone (1) copy of the decision letter together with alist of those employees who have been designatedas excepted or those employees who are deemed tobe exempt. The local parties will determine the formof and the timing for delivery of the list. Employeeswill be given a written document notifying them ofapplicability to the employee.
D. Employees are expected to listen to radio and/ortelevision broadcasts to learn when an appropriationor continuing resolution has been signed or whenthe debt ceiling has been raised. The Employer andthe Union are free to negotiate, at the national level,additional methods of notifying employees aboutthe conclusion of the furlough. Employees will thenbe expected to report to work no later than four (4)hours after that announcement. In the event theannouncement contains instructions on reporting towork later than that, employees will be expected tofollow those instructions. A liberal leave policy will bein effect on the day employees are to return to work.Employees who travel during the time of the furloughwill be expected to return to work in accordance withthe terms of this Article or with the more specificinstructions.
E. If an employee has “use or lose” leave scheduled duringthe furlough, the employee and his/her managershall make every reasonable effort to reschedule theexpiring leave during the leave year. In the eventthat it cannot be rescheduled, the shutdown willqualify as an exigency of the public business and theforfeited leave may be restored in accordance withIRM 6.630.1.3.3.
F. During any fiscal year in which a furlough occurs, theService and NTEU shall jointly issue an all-employeenotice with Questions and Answers attached whichwill advise employees of the impact of non-pay statuson civil service benefits and programs and which willaddress some financial concerns employees may havewhen faced with a pay reduction. The Service willdistribute this notice to all employees.
G. All employees will receive from the servicing PersonnelOffice a fact sheet describing unemployment benefitsavailable in their jurisdiction. At a minimum, this noticewill contain information on unemployment benefitsavailability, the waiting period, if any, benefits eligibilityrequirements, and the location and phone numberof State and/or municipal agencies responsible foradministering the program in the local area.
H. During the period of the furlough employees mayengage in outside employment in accordance with the“Plain Talk About Ethics and Conduct.” Employees maynot engage in any activity prohibited therein. Whilein a non-pay status, such employees may engage inoutside employment without obtaining prior writtenpermission that is otherwise required. Upon return toduty status, employees must submit a written requestto engage in outside employment if such activitycontinues.
I. When a shutdown furlough impacts the contractualdeadlines of this Agreement,  all parties willbe  provided  one (1) additional day in which to meetthose contractual deadlines for each day of the furlough.

Thousands of Employees Called Back

IRS Releases New Filing Season Plan

The IRS today issued an updated tax filing season contingency plan that has been approved by the Treasury Department and the Office of Management and Budget. Under the plan, the IRS indicated that it will recall 36,000 more employees to prepare for the tax filing season.

Once again, the IRS is using the “call tree” process to contact employees. The IRS will begin contacting employees as early as today to return to work. Employees who receive a call are obligated to return to work as directed.

NTEU understands this recall will add to the anger and frustration that you already rightfully feel. Many of you were forced to stay home or work without pay, and now thousands more employees will be on the job without a paycheck. On top of this, some employees previously dealt with the chaos of being called back to work one day and told to stay home the next.

Last week, NTEU filed a lawsuit alleging that the executive branch can’t continue to force more employees to work in exchange for a promise they will be paid later. NTEU was in court today arguing our case and asking for an immediate temporary restraining order to stop the administration from obligating funds to federal employee salaries that Congress has not yet appropriated. While a judge denied NTEU's request for a temporary restraining order, he did set a court date later this month for our request for a preliminary injunction.

The union also is moving forward with a separate lawsuit challenging the administration’s authority to force thousands of federal employees to work without pay. If processing tax returns is an essential government service that should not be suspended during a shutdown, then the employees who provide that service should be compensated on their regular pay day, as required by law.  

The IRS needs to get ready for the impending filing season, and employees want to work. But the bottom line is, you need a paycheck now. We will continue to drive home this message to Congress and the administration and tell your story to the media and the American public. NTEU is in close contact with the IRS, and we will continue to voice your concerns and get your questions answered on this transition.

Despite this stressful and uncertain time, you remain committed to your job and the American people, and we thank you.

Unemployment Benefits

Employees who are recalled but still seeking unemployment benefits should be aware that some states allow residents to receive unemployment benefits if they are working but not receiving a paycheck. Laws vary by state and more information is available here. You may need to provide a completed SF-8 form and a furlough letter from the agency. NTEU has received reports that the IRS is not providing timely salary information to state unemployment offices. The union has contacted the agency to fix this problem.

Hardships

The IRS must consider an employee's request not to work due to a hardship. While hardships are not defined in the agreement, they could be financial in nature. Employees seeking a hardship exemption should provide as much detail as possible. Beyond hardships, employees cannot simply refuse to come into work. 

 Contingency plan can be found here https://home.treasury.gov/system/files/266/IRS-Lapse-in-Appropriations-Contingency-Plan_Filing-Season_2019-01-15.pdf