10 Questions About Furloughed Employees Answered

 

Allen Smith, J.D. By Allen Smith, J.D. January 9, 2019
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​The partial government shutdown of 2018-19 has resulted in the furlough of 380,000 federal employees and 420,000 federal employees having to work without pay during the shutdown. Many federal contractor employees are furloughed as well. Here are some of the most frequently asked questions about employees affected by the shutdown.

1. Once the government reopens, will furloughed workers be paid for the missed work time? Congress passed legislation on Jan. 11 to provide furloughed federal employees with retroactive pay. President Donald Trump is expected to sign the bill into law, according to Bloomberg. Nonexempt, furloughed federal contractor employees do not have to be paid retroactively for hours or days of a partial government shutdown that they did not work, unless Congress dictates otherwise (and it typically has not for contractor workers in past furloughs), noted Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C. Exempt, furloughed federal contractor workers are entitled to their regular salary for any workweek in which they perform any work or if they work a partial workweek during the shutdown, he added. If the furlough lasts for an entire workweek and the exempt federal contractor employee does not perform any work during the week, the employer does not need to pay the employee for the workweek, said Libby Henninger, an attorney with Littler in Washington, D.C.

2. Can federal contractors' employees be fired during a government shutdown? Yes, if they are at-will employees, Robinson noted. But he added that most contractors are not discharging because they will need workers once the shutdown ends.

3. Are furloughed federal employees and furloughed federal contractor workers eligible for unemployment compensation? These employees may become eligible for unemployment compensation, but state unemployment-compensation requirements differ. Some states require a one-week waiting period before an individual qualifies for payments, the U.S. Department of State said in its Jan. 4 Furloughed Employees Handbook. If Congress authorizes retroactive pay after the furlough ends, employees will be required to pay back the unemployment compensation. Federal workers who are not furloughed but have to work without pay are not eligible for unemployment compensation, the Department of Labor noted Jan. 16, according to The Wall Street Journal

4. If a federal employee is scheduled to take Family and Medical Leave Act (FMLA) time off during a shutdown, should the employee be furloughed? Yes, according to the Office of Personnel Management's Guidance for Shutdown Furloughs, which states that no days associated with a shutdown furlough period will be counted against an employee's 12-week FMLA leave entitlement.

5. If a federal contractor worker is scheduled to take FMLA time off during a shutdown furlough, may the worker be furloughed? Yes, according to Joan Casciari, an attorney with Seyfarth Shaw in Chicago, and no days associated with the shutdown should count against the FMLA leave entitlement. But the request for FMLA leave cannot be used as a selection reason, she noted.

6. May federal employees take other jobs while on furlough? While furloughed, an individual remains an employee of the federal government. So executive branch standards of ethical conduct and rules regarding outside employment still apply. In addition, there are specific statutes that prohibit certain outside activities and agency-specific supplemental rules that require prior approval of and sometimes prohibit outside employment. As a result, before engaging in outside employment, federal employees should review these regulations and consult their agency ethics official, the Guidance for Shutdown Furloughs notes.

7. May a furloughed employee—whether working for the federal government or a federal contractor—volunteer to do his or her job without pay? No. This would violate wage and hour laws, as well as 31 U.S.C. Section 1342 for federal employees.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

8. May federal employees who are required to work without pay during the shutdown earn premium pay, such as overtime? Yes. Such employees who meet the conditions for overtime pay, Sunday premium pay, night pay and other premium payments will be entitled to such premium pay. Premium pay may be earned but can't be paid until Congress passes and the president signs a new appropriation or continuing resolution, the Guidance for Shutdown Furloughs states.

9. Does a shutdown furlough affect the accrual of a federal employee's annual leave and sick leave? If a federal employee is furloughed for part of a biweekly pay period, the employee's leave accrual will generally not be affected for that pay period, the Guidance for Shutdown Furloughs provides. However, the accumulation of nonpay status hours during a leave year can affect the accrual of annual leave and sick leave over a period of time.

10. How are federal employees affected if, during a shutdown furlough, their federal office is closed or announces a change in operating status due to an emergency or severe weather? Furloughed federal employees will not be affected if their federal office is closed or announces a change in operating status, and they will remain in furlough status. Federal employees required to work during the furlough will follow normal emergency operating procedures during a federal office closure, which may result in these workers being placed in furlough status for any hours of work not performed.

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