Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘furlough’

With Shutdown Over, OPM provides Guidance on Back Pay for Federal Employees

Thursday, February 14th, 2019

In late January, federal employees across the country returned to work for the first time in over a month.  In an effort to provide retroactive pay as quickly as possible, The U.S. Office of Personnel Management (OPM) has issued guidance to federal agencies impacted by the shutdown to explain how their employees should receive back pay and other benefits.

Back Pay

Employees who were furloughed will receive back pay at their standard rate of pay for the time that they would have been in a regular pay status if the shutdown had never occurred. This includes overtime pay, night pay or other premium pay (e.g. LEAP, holiday pay, etc.) that the employee would have received.

However, if an employee was scheduled to be in a non-pay status during the shutdown, including Leave Without Pay (LWOP) or serving a suspension, then the employee is not eligible for backpay during that period, including holidays.

For excepted employees who were required to work without pay during the shutdown, they will receive their regular pay for the hours they actually worked, including any overtime or other premium pay. Conversely, if the employee did not show up for work and did not request leave, they will be marked absent without leave (AWOL) and will not receive back pay.

For any employees who received unemployment payments during the shutdown, the state involved will receive notice of the back-pay amount and then make a determination as to what repayment is required.

Leave

Furloughed employees cannot be charged paid leave or other paid time off during the shutdown, even if they had prescheduled paid leave. On the other hand, excepted employees may be charged leave – and compensated for it through back pay – for periods during the furlough where they used paid leave in lieu of reporting to work.

Many employees were planning to take “use or lose” annual leave but were furloughed before they could do so. According to OPM, agencies must restore any annual leave that was scheduled in writing prior to November 24, 2018. Note that restoration of leave will not apply to scheduled leave for December 24, which was declared a federal holiday in 2018, unless the employee can show they would have rescheduled the leave for another day. Restoration also does not apply to leave that had previously been restored. In those instances, the leave is lost for good.

Similarly, employees who were unable to use compensatory time off in lieu of overtime pay due to the shutdown will be paid for such time. Compensatory time off for travel that was forfeited can be restored and extended for another 26 pay periods.

In regard to accruing leave during the shutdown, all employees receiving back pay are considered in a pay status for that period and will also accrue leave at normal rates.

FMLA

The Family Medical Leave Act (FMLA) provides unpaid leave for up to 12 weeks but employees are permitted to substitute paid leave during this time to continue receiving pay.  For employees that were on FMLA during the shutdown, back pay will be dependent on whether the employee was scheduled to substitute paid leave. If the employee had planned to use paid leave during their FMLA leave period, these employees will not only receive back pay but they will also not be charged any leave. However, employees scheduled to be in a non-pay status (i.e. FMLA LWOP), will not receive back pay. For all employees using FMLA leave, the shutdown period will still count toward their 12 weeks of protected leave.

Benefits & Retirement

Employees are also entitled to retroactive benefits. Deductions will be taken out of the back-pay checks to cover employee contributions to health and retirement plans. Loan payments to Thrift Savings Plans (TSP) will also be made.

For those employees who requested to retire during the shutdown, the retirement will be made effective retroactively to the date requested and no back pay will be received after that date.

It isn’t yet clear when agencies will begin making these retroactive payments. If you believe the agency has incorrectly calculated your back pay or you have been improperly denied any benefits as a result of the shutdown, you should contact an experienced federal employment attorney to determine what options you have to protect your rights.

About the Author: Alan Lescht has been successfully litigating employment discrimination, civil rights, and commercial litigation cases for more than 30 years and has won dozens of notable trials. He is the founding partner of Alan Lescht and Associates, PC, where he oversees the firm’s employment litigation and counseling practices.

Gov. Schwarzenegger's Furlough Days for Thousands of State Workers Ruled 'Illegal'

Tuesday, January 5th, 2010

Image: Kate ThomasCA Governor Arnold Schwarzenegger acted illegally by placing tens of thousands of state employees on unpaid furloughs, a Superior Court judge ruled late Thursday on SEIU Local 1000’s lawsuit to overturn the furlough scheme. The ruling to halt thrice-monthly furloughs marks a much-improved start to 2010 for the state workers, who had seen their salaries slashed roughly 15 percent as a result of the mandated unpaid days off.

Alameda Superior Court Judge Frank Roesch ruled that by ignoring legal restrictions on furloughs, the Schwarzenegger administration overstepped its authority in approving the unpaid days off. Judge Roesch called the furloughs an “abuse of discretion” that interfered with operations of state agencies (like the DMV) and achieved questionable savings. From Roesch’s case ruling:

Moreover, when furloughs are implemented to save money, yet their implementation in some agencies saves nothing and increases costs, such a policy is arbitrary, capricious and unlawful.

“We said all along that the governor’s actions were illegal,” said SEIU Local 1000 President Yvonne Walker. “The governor violated the law and, as a result, people lost money…to remedy that violation, you have to give people back the money they lost.” SEIU Local 1000 first filed suit after the governor began the furloughs in February, in response to the state’s $42 billion budget gap.

Judge Roesch’s ruling could affect up to 50,000 employees represented by SEIU who work at agencies that do not rely on the state’s general fund, as well as tens of thousands of workers represented by two other unions, CASE and UAPD.

More details from SEIU Local 1000 on Judge Roesch’s ruling to halt furloughs after the break.

Judge Frank Roesch’s December 31st ruling is the second consecutive legal victory for Local 1000 on the furlough issue. In November, another Superior Court judge ruled that the governor violated the state insurance code when he included State Fund employees in his unilateral furlough orders.

An administration spokesperson said the governor would appeal and that an automatic suspension of Roesch’s order will result–leaving furloughs in effect and halting consideration of back pay–while an appellate panel considers the case. At a minimum, Judge Roesch’s ruling orders Governor Schwarzenegger to “cease and desist” the furlough of employees whose salaries are paid from special funds. Additional litigation may be necessary to clarify whether Judge Roesch’s order extends to state employees whose salaries are paid from the General Fund. “It remains to be seen whether the governor will continue to waste scarce state resources litigating this issue rather than simply complying with the Court’s order,” said Local 1000 president Yvonne Walker.

SEIU Local 1000 attorneys said they will ask Roesch to put the ruling into immediate effect and stop the furloughs during the appeal. In the State Fund case, Roesch ordered an immediate end to furloughs and reinstatement of back pay. The judge ruled that the governor’s reliance on the state Emergency Services Act, to furlough state workers, was misplaced because an emergency must have some time limit. “The emergency necessitating them was the failure of the Legislature to pass the budgets, though the reach of the orders extended long after those budgets were subsequently passed and signed into law,” the judge wrote.

Roesch ruled that furloughing state employees who are paid from special funds illegally interferes with the operation of specially funded agencies. “When furloughs are implemented to save money, yet their implementation in some agencies saves nothing and increases costs, such a policy is arbitrary, capricious and unlawful,” he said.

Roesch also rejected what he described as Schwarzenegger’s final justification: the need to treat all employees equally, regardless of the source of their agency’s funds. The governor is arguing, in effect, that furloughs should be spread throughout state government “so that all state employees suffer equally, without regard to savings to the General Fund and without lessening the pay cuts suffered by the General Fund employees,” Roesch said. “This is not rationally related to any government purpose.”

» View the Order Granting Petition For Writ of Mandate [PDF]

Read the original news update from SEIU Local 1000 here.

*This post originally appeared in SEIU Blog on January 4, 2009. Reprinted with permission from the author.

About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

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