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Back pay bill’s effect on furlough uncertain

The expectation that furloughed federal employees will be paid caused at least one member of Congress to recall his own furloughed staffers, but it is unclear whether that could be the start of a broader return for that reason.

Rep. Mark Sanford (R-S.C.) announced Monday that effective Tuesday the half of his office staff that he furloughed would return to work.  “I think common sense would dictate that now that it’s clear everyone will be paid, that they should work — anything less would amount to an extended taxpayer subsidized vacation,” said a posting on his Web site.

(J. Scott Applewhite/AP) (J. Scott Applewhite/AP)

The House on Saturday passed legislation to provide back pay to the roughly 800,000 federal workers who were told to stay home starting Oct. 1 due to the budgetary deadlock. Another 1.3 million employees were kept on the job due to the nature of their work or, in some cases, the availability of funds not requiring annual congressional approval. The Defense Department since has recalled for military readiness purposes the large majority of the 400,000 employees it initially furloughed.

Both furloughed employees and those excepted from furlough currently are in unpaid status. However, “excepted” employees have been promised all along that they would get back pay once the standoff ends, since the government was incurring an obligation to them by keeping them at work. There has been no such pay guarantee for those furloughed, although in past shutdowns such employees received retroactive pay, too.

The House bill, passed on a 407-0 vote, currently is pending before the Senate, where it is hung up at least temporarily. The White House favors the bill.

The distinctions between operations that continue versus those that are shuttered in a funding lapse are laid out in Office of Management and Budget guidance known as Circular A-11.  It says the government “may not incur any obligations that cannot lawfully be funded from prior appropriations unless such obligations are otherwise authorized by law.”

The bill before Congress is designed to provide authorization to pay furloughed employees: it states that they “shall be compensated at their standard rate of compensation, for the period of such lapse in appropriations, as soon as practicable after such lapse in appropriations ends.”

However, in order to recall them to the job, a broader measure might be needed to restart the programs in which they work, on grounds that authority for the programs themselves ran out Sept. 30 when fiscal year 2013 ended with neither regular appropriations nor a stopgap measure in place.

During the House debate, the issue wasn’t addressed.

A House aide speaking not for attribution said it was her understanding that the bill does not require the return of furloughed employees to work.

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