White House looks for a loophole in the law ensuring federal workers get paid after a shutdown

WASHINGTON — A draft White House memo argues that furloughed federal workers are not entitled to back pay after the government shutdown lifts, White House press secretary Karoline Leavitt told NBC News.

The memo, first reported by Axios, comes despite the Office of Personnel Management’s own September guidance, which said federal workers will receive retroactive pay after the shutdown lifts.

The memo also clashes with a 2019 law that requires back pay for federal workers. The law, called the Government Employee Fair Treatment Act of 2019, says all federal employees, whether furloughed or deemed essential and working without pay, must receive back pay after a shutdown ends.

“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,” the 2019 law says.

Axios reported that the White House does not believe the law automatically covers all furloughed workers because of a change to the law that says employees would be paid “subject to the enactment of appropriations Acts ending the lapse.” The White House interpreted the added clause to mean that Congress must appropriate the back pay once a shutdown ends.

The memo comes as Republicans and the White House seek to ramp-up pressure on Democrats to vote for the GOP-supported continuing resolution, which would provide short term government funding at current levels. Any White House action based on the memo would increase pressure on the Senate to pass the short-term funding bill. Congress could close the supposed loophole cited by the White House in any funding resolution to reopen the government.

Democrats are pressing to include an extension of Affordable Care Act subsidies, which are set to expire at the end of the year, in any short-term government funding bill.

Lawmakers do not appear close to an agreement to reopen the government. On Monday, the Senate rejected both the Republican and the Democratic short-term spending bills, which have failed to pass multiple times.

The House does not have votes scheduled this week. The chamber is set to return to Washington on Oct. 14. NBC News