By Erin McCoy
On October 1, 2025, much of the United States government shut down after Congress failed to pass a funding bill, leaving approximately 750,000 workers on furlough. In 2019, after a five-week government shutdown, Congress enacted the Government Employee Fair Treatment Act (“GEFTA”), 31 U.S.C. § 1341, et seq., signed by President Trump in his first term. This law ensures that federal furloughed employees receive backpay as soon as a lapse in appropriations ends, regardless of the employee’s pay schedule. Until recently, no one had questioned the validity of this law.
On October 7, 2025, Axios reported on a draft memo circulated by administration officials in the White House and Office of Management and Budget that raised the possibility that furloughed federal workers may not be entitled to backpay after (“OMB”) the current government shutdown. When a reporter asked President Trump about the White House’s position on whether furloughed workers should be paid, he responded “I would say it depends on who we’re talking about” but assured reporters that he would ultimately follow the law. So, what is the law?
Under GEFTA, “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 . . . at the earliest date possible after the lapse in appropriations ends.” § 1341(2) (emphasis added). On its face, the law mandates that the Government pay each furloughed employee backpay as soon as possible once the shutdown ends. However, OMB seems poised to argue that there is a loophole. Under the same provision, it states the payment is “subject to enactment of appropriations Acts ending the lapse.” Id. In other words, Congress must still explicitly approve funding for any payments to occur. Therefore, OMB might argue that backpay is not guaranteed unless Congress passes an appropriations bill after the shutdown.
GEFTA provides the most explicit and thorough protection for furloughed government employees. However, if the White House decides to go through with its interpretation, there are other modes of recourse for employees. For example, the Civil Service Reform Act, 5 U.S.C §§ 7511-7515, implements procedural safeguards for employees subject to “major adverse actions” which includes reductions in grade or pay and furloughs of 30 days or less. Moreover, under the Fair Labor Standards Act, 29 U.S.C. §§ 206-207, the U.S. Government must pay workers earned wages on a regularly scheduled pay period basis. The government complies with the FLSA when “it pays employees at the earliest date possible after the lapse in appropriation ends.” See Avalos v. United States, 54 F.4th 1343, 1452 (Fed. Cir. 2022). Otherwise, employees may sue for liquidated damages. 29 U.S.C. § 216(b). OPM just affirmed this remedy in the Guidance for Shutdown Furloughs, which provided “all periods of time during which a furloughed employee would, but for the lapse in appropriations, have been in a pay status (including regularly scheduled overtime hours and standby duty) must be considered ‘hours of work’ for pay administration purposes under the Fair Labor Standards Act.” Guidance for Shutdown Furloughs at 10.
Overall, furloughed workers are statutorily entitled to backpay under GEFTA. Because of GEFTA’s clear language, if the administration tried to deny backpay to furloughed workers, then it is likely headed to the courts.
Erin McCoy is a recent law school graduate, and a fellow at Bernabei & Kabat, PLLC.