Shutdown – What are your legal rights?

As the days tick by the likelihood of a government shutdown goes up. So what does that mean for you, the government employee? What does it really mean to you in a legal sense? Will you get paid? Are you essential or nonessential? What will happen if the government actually shuts down?

There are a lot of questions and very few answers. But we wanted to help get you as prepared as possible. So GovLoop’s DorobekINSIDER sat down with Debra Roth. Roth is an Attorney at Shaw Bransford and Roth. She told Chris Dorobek that this potential shutdown has her nervous because it’s not getting much attention outside the beltway.

“The noise hasn’t really popped outside the agencies much. But when Congress shuts down the government they have to go through the question of who is essential and who isn’t. When the government shutdown during the Clinton Administration the proportion of who was declared essential versus non-essential was very weighted in favor of non-essentials. Well, the world has dramatically changed since then and the focus of what the US government does has dramatically changed post 9/11. For many people who are relatively new to government they don’t remember what government was like pre 9/11. But you could see it with furloughs – how agencies were identifying who to furlough – they had this discussion about essential versus non-essential. What you started to see was that agencies viewed everyone to be essential. Short of administrative staff. So it will be very interesting this time around if they do shutdown, how that gets weighted.”

A USA Today study found that only 41% of feds would be furloughed if the government shutdown.

“So is the government really open then? Is it just optics and rhetoric if only a percentage of the staff is furloughed?” asked Roth. “If you go into places at Homeland Security and or say to CBP, they have for argument’s sake 12,000 border patrol agents – are they essential or nonessential? I think CBP is going to say they are essential. So you have whole parts of the government that post 9/11 will be declared essential.”

Question of pay

• Employees could be asked to come to work without getting paid.
• They could be declared essential and Congress funds them, which you sort of saw piecemeal happening during furloughs. Congress would exempt that piece of an agency from sequestration. For example, for three days FAA was sequestered and then flights started slowing down and they got themselves exempted.
• For those employees who will be declared nonessential, assuming the government shuts down, – the beltway has always believed Congress once they agreed on a budget or a CR – would give employees retroactive pay? However, I think if you were going to gamble, you should NOT anticipate Congress providing for retroactive pay for those nonessential employees this time around.

Status check on furloughed employees:

1. In agencies where employees were furloughed – they are probably thinking about their personal finances. They are probably thinking about how long they can go without being paid. In the Clinton Administration they were furloughed for a nice period of time – three weeks. But the atmosphere at the time was almost an accepted belief that when the government was reopened the government would fund their back pay and indeed it happened. There wasn’t even that much debate or consideration about it. I think today federal employees, at least most of them, believe that they will not get paid. So right now they are thinking how long will the shutdown last? How will we survive? And at many agencies employees have already been furloughed anywhere from 5-14 days. So if you have a 3-week shutdown, that amounts to not getting paid for a whole month. And for most people that would make it difficult to meet your household commitments.
2. Employees are thinking about at what point should the unions get involved to bring this to a closure?
3. But mostly I think federal employees feel exacerbated by it by the endless talk of shutdown and budget debates.

Are any of the MSPB furlough appeals successful?

“MSPB is reporting thousands of appeals on furloughs, mostly from the DOD. Many of those appeals came at the urging of the Unions. But there are some appeals that attorney’s brought. The reality right now is that they are at the very beginning of the processing stage at MSPB and they are utterly swamped by the appeals. So there is no real insight at this point if any of those cases will be successful.”

• For the bread and butter furlough cases where everybody was furloughed and you were treated the same way as everyone else, sort of think about that like in the 80s when President Reagan fired the Air Traffic Controllers. They all appealed and they all lost, because they all had a uniform consistent defense. Their defense was legally incorrect.
• So for those employees from agencies where everyone except if you were in a specific category got furloughed for X amount of days and you can’t show that you were somehow treated differently because of a protected status – then the likelihood of winning your appeal is very very minimal.

Shutdowns on morale?

“Shutdowns are so disruptive to the operations of government. Besides the fact that these employees have personal lives and financial commitments it is very disruptive at work to prepare for a shutdown. They would all prefer to come to work and get their jobs done as opposed of being the political football. It sucks all the life of what the agency should be doing to deal with the political crisis of the moment. It is very unclear for people who have been watching the last two years the Congressional debates going on about funding of the government. I think now people see this crisis as pretty real,” said Roth.

Feels very different from even two years ago when we almost had a government shutdown?

“Talking to different people in the federal community you get the sense that people in an out of the political arm of our government feel that we are at a very different and difficult point in our government. Where is the point of return? Maybe it is to shut the government down? It worked very effectively in the 90s to get the attention of the public.”

Does the American public care?

“Many people follow and watch polls, I am not sure Congress is one of them, but the American public is tuned out. It is not because they don’t care and it’s not because of ignorance, it is because of frustration and the fact that it is annoying. So you have to sort of wonder who is really listening? Will people start to listen if the government gets shuts down? But then I come back, to who are they really going to shutdown? Who are they going to declare essential. Because with sequestration the way Congress went back and unsequestered certain agencies – little of the American public felt it. Their flights were on time. USDA was approving and certifying food. Social Security is sending out checks. They might feel haggard inside of SSA but the public is still getting their checks. So it was shrewd political move on the part of congress to exempt agencies or parts of agencies because it kept the American public from feeling the pain,” said Roth.

Shutdown is only half the issue, the other is the debit ceiling?

“Just the other day I heard the head of the IMF being interviewed about the consequences on the international economy if we don’t raise the debt ceiling. People maybe now feel that since we didn’t fall of the cliff with sequestration, maybe we can do that with the debt ceiling and shutdowns, because the world didn’t come to an end. I think sequestration may be just the beginning,” said Roth.

Check out all our shutdown coverage, with keyword shutdown.

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