Trump Barrels Toward Legal Fight Over Federal Workers’ Back Pay

The Trump administration’s push to deny back pay to federal workers furloughed during the shutdown sets the stage for another round of legal battles over the president’s control of the workforce.

The White House in a draft legal opinion Tuesday suggested it may withhold back pay from government employees when the shutdown ends, raising the threat of lost wages for potentially 750,000 civilian workers and stoking a broader clash over how much employees are owed after a shutdown ends.

“It is absolutely a violation for the government to require people to work without paying them,” said Heidi Burakiewicz, a plaintiff-side attorney who represented federal workers who sued for back wages during the first Trump administration.

The White House’s Office of Management and Budget, led by Russell Vought, argued in the memo that the Government Employee Fair Treatment Act—a 2019 law that enshrined paying federal workers into law—is faulty. The memo claims that furloughed employees can only be paid if lawmakers designate funds specifically for that purpose at the end of a shutdown, while the government has a “binding legal obligation” to pay essential workers.

House Speaker Mike Johnson (R-La.) signaled openness to the idea of withholding pay Tuesday, while saying he wasn’t sure it was legal.

“There are legal analysts who think that is not something the government should do,” Johnson told reporters. “If that is true, that should turn up the urgency and the necessity of the Democrats doing the right thing here.”

Read More: Trump’s Shutdown Back Pay Threat Irks Republican Lawmakers

Spokespeople for the White House and the OMB didn’t respond to requests for comment.

“The frivolous argument that federal employees are not guaranteed back pay under the Government Employee Fair Treatment Act is an obvious misinterpretation of the law,” Everett Kelley, president of the American Federation of Government Employees, said in a statement.

Wages Owed

OMB’s stance was met with swift criticism from federal employment attorneys and former officials, who said such a move would be illegal—an express violation of the 2019 law.

“What the law actually says is that when Congress enacts a law ending a lapse, furloughed employees get paid at the earliest date possible. Period.” Samuel Bagenstos, who served as OMB general counsel during the Biden administration, wrote on Bluesky.

Workers could be owed around $400 million in back pay for each day the shutdown continues, according to a Congressional Budget Office estimate last month.

If Congress refuses to appropriate funds, workers may still be able to seek back pay through the US Court of Federal Claims, said Zachary Price, a University of California-San Francisco law professor who was a Justice Department lawyer during the Obama administration.

“The bottom line is it shouldn’t be up to the president,” Price said.

Agencies are prohibited under the Antideficiency Act from spending money they don’t have. In 2019, the law was amended to require retroactive pay for furloughed employees after a shutdown, codifying a practice that Congress chose voluntarily in previous shutdowns.

Essential Worker Fight

But it’s less likely those employees would be eligible for damages, since the Fair Labor Standards Act—a Depression-era law designed to protect workers from wage violations—only applies to those actively working.

The first Trump administration was allegedly late in paying some essential workers during a 35-day shutdown in 2019, triggering a long-running lawsuit in which plaintiffs sought double damages under the FLSA.

A federal court ruled that essential workers were entitled to those damages in addition to their back pay, finding that the government had violated federal labor law. The ruling was later struck down on appeal.

Under the FLSA, employers can be held liable for extra damages that match the workers’ pay unless they can prove they made a “good faith” mistake. The US Court of Federal Claims ruled in 2020 that requiring essential employees to work without pay was illegal, echoing a previous decision related to the 2013 shutdown.

News of Trump’s plan prompted more fear and uncertainty, causing some federal workers to wonder how much more they could endure. Agencies have faced multiple rounds of cuts, mass layoffs, and outright firings. The same day the shutdown began, more than 150,000 workers who took buyouts left the government for good.

“I’m kind of caught between a rock and a hard place,” said Peter Farruggia, a furloughed worker for the Centers for Disease Control and Prevention who chairs the executive committee for AFGE Local 2883. “If I don’t get back pay, I’m kind of screwed.”