Trump questions back pay for federal workers furloughed as part of government shutdown

By Alejandra Jaramillo, Tami Luhby, Sarah Ferris, CNN

(CNN) — President Donald Trump is considering not giving back pay to all federal employees once the government shutdown ends, suggesting it could depend on the worker in the GOP’s latest attempt to force Democrats to concede in the ongoing funding battle.

“I would say it depends on who we’re talking about. 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,” Trump said from the Oval Office Tuesday afternoon.

Such a move, also suggested in a White House draft memo, would stand as a remarkable break from precedent. That interpretation of the law is landing with a thud on Capitol Hill, where top GOP leaders distanced themselves from the idea as they made clear they supported back pay for government workers.

House Speaker Mike Johnson told reporters Tuesday that he personally supported back pay for government workers. Privately, some Republicans have suggested the White House budget office issued the threat largely to further ratchet up pressure on Democrats, after its earlier moves to explore mass layoffs of federal employees and cancel federal funding for blue state projects.

In his remarks, Trump offered no clarity about which workers he might protect, but added there are “some people that really don’t deserve to be taken care of.” Further questioned about the issue, Trump put the blame on Democrats: “Ask the Democrats that question. I follow the law. And what the law says is correct.”

CNN has not reviewed the draft White House memo, first reported on by Axios, that suggested the furloughed workers need not be paid, and it is not clear how seriously the idea was being considered. It’s also not clear whether the threat would ultimately be carried out: Multiple Hill Republicans and Democrats said if there was any uncertainty about the legality of back pay, Congress could fix the issue by adding language into the next spending bill.

The updated memo from the White House’s Office of Management and Budget contends that the Government Employee Fair Treatment Act (GEFTA) has either been misinterpreted or is “deficient,” an administration official confirmed to CNN.

GEFTA has commonly been understood to guarantee that furloughed workers would receive back pay at the conclusion of any future shutdowns.

Trump signed it into law during his first term amid what was then the most recent government shutdown, which ended in late January 2019 after a record 35 days.

Before the law was passed, Congress traditionally approved measures to provide back pay for federal workers affected by shutdowns once lawmakers approved a funding package to reopen the government. But the lack of a guarantee often left workers on edge.

GOP leaders say they support back pay

Roughly 750,000 federal workers are expected to be furloughed during this shutdown, according to a Congressional Budget Office analysis. More staffers will continue having to do their jobs but without pay until the impasse is resolved.

Johnson on Tuesday said he and Trump want the federal workforce to receive back pay once the shutdown ends, though he acknowledged there will be a lot of “discussion” about the new argument that it may not be legally necessary.

“There are some legal analysts who are saying that may not be appropriate or necessary,” Johnson said, adding that he hasn’t spoken with the White House about the issue.

Pressed on whether he personally supported current law guaranteeing the pay, Johnson said he and Trump both did.

“I hope that furloughed workers receive back pay, of course. We have some extraordinary Americans who serve the federal government, they serve valiantly and they work hard,” Johnson said. “They serve in these various agencies doing really important work and I can tell you, the president believes that as well. He doesn’t want people to go without pay. That’s why he pleaded with Chuck Schumer to do the right thing.”

Senate Majority Leader John Thune, for his part, said he was not aware of any change in policy on back pay for furloughed federal employees during the government shutdown.

“I don’t know what statute they’re using. My understanding is yes, that they would get paid. I’ll find out. I haven’t heard this up until now,” he said.

But Thune, too, pivoted to Democrats when pressed on the issue. “When it’s all done, all you have to do is deliver a handful of votes, the government reopens, and this question of whether people get paid or not is a nonissue,” he said.

Democrats were adamant that back pay was guaranteed under current law and said they would fight to protect it in court, if necessary.

House Minority Leader Hakeem Jeffries declared, “The law is clear: Every single furloughed federal employee is entitled to back pay. Period full stop.” While Sen. Patty Murray, the top Democratic appropriator in the Senate, blasted the draft memo a “baseless attempt” to scare federal employees.

Partial paychecks come this week for many

Many government employees will start feeling the effects of the shutdown later this week, when their paychecks are a bit smaller since they won’t be paid for the first few days of October. The partial paycheck will be, for many, their last until the shutdown ends.

The Hill also sees October 15 – when active duty military members will miss their first paycheck – as a major upcoming deadline.

The existence of the draft memo contrasts with Trump’s comments over the weekend as he told members of the military not to worry about delayed paychecks while visiting one of the largest naval installations in the world to celebrate the US Navy’s 250th birthday.

“I want you to know that despite the current Democrat-induced shutdown, we will get our service members every last penny,” Trump told a large crowd of sailors in Norfolk, Virginia, on Sunday. “Do not worry about it. It’s all coming, it’s coming, and even more.”

The president also announced support for “across-the-board pay raises for every sailor and service member in the United States Armed Forces.”

Asked for comment on the draft memo, the American Federation of Government Employees said it was inconsistent with guidance that the White House Office of Personnel Management released in late September.

“After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods,” the guidance said. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”

Everett Kelley, the union’s national president, called the White House’s argument “frivolous” and said it was “an obvious misinterpretation of the law.”

The memo is yet another effort by the Trump administration to “traumatize” the federal workforce, said Max Stier, CEO for the Partnership for Public Service, a nonpartisan group that focuses on improving the federal government.

Federal workers have had to contend with the president’s efforts to downsize the government and make it harder for civil servants to contest his actions. The administration has shuttered divisions of agencies, stripped workers of their union contracts and pushed staffers to take buyout packages. Even before the shutdown, Trump directed agencies to look into widespread layoffs through “reductions in force,” or RIFs.

“They’re using the shutdown, which shouldn’t be happening anyway, as yet another opportunity to create further trauma,” Stier told CNN. “They’re creating conditions where it makes it very difficult for people who want to fulfill their vision of serving the public to actually do it.”

The story and headline have been updated with additional information.

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CNN’s Betsy Klein contributed to this story.