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In the news, the reporters have been talking about "essential" (real quotes, not scare quotes) government employees being required to work without pay by these two statements (paraphrased).

All employees will have to forgo pay during the shutdown.

Essential employees will be working during the shutdown while non-essential employees will be sent home.

One example of such claims: https://www.kcra.com/article/what-a-partial-government-shutdown-could-mean-for-you/25648684

I remember the Thirteenth Amendment banning "slavery and involuntary servitude" and this is in fact so powerful that the federal government cannot force private practitioners to take Medicare at all.

I again remember the ability to draft for reasons of national security, but I know of no case where that drafting was not with full pay according to the normal government pay scales.

But even if the government is really out of money (which it isn't; during a shutdown it should be running a tax surplus*), I can't imagine how this leads to requiring people to work without pay. My normal assumption would be you print unbacked money if you have to (and deal with the inflation later) to pay the troops.

But they say the employees will be required to work without pay. How?

*They say the shutdowns cost the government money. The net loss is due to the almost universal practice of paying all the government workers after the fact.

Rick Smith
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Joshua
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    It would be helpful if you would provide citations for those reporters who are saying that "government employees being required to work without pay". If that is an accurate quote, it is probably a good example is bad reporting (or lazy reporting). – BobE Dec 24 '18 at 01:46
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    @BobE I've heard similar things in past shutdowns, and was confused at first just like OP was. – cpast Dec 24 '18 at 02:02
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    Note that funding has lapsed for only about 1/4 of the US federal government, so most government employees (including I believe all defense/military staff) will continue to work and be paid as usual. – Todd Wilcox Dec 24 '18 at 08:48
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    Of course the military will continue to be paid. – Ian Kemp Dec 24 '18 at 13:41
  • If they're not quotes, they shouldn't be in quoteblocks, no. The formatting exists for reasons and there are a number of additional moving parts that assume facts about the content based on it. If it was the only change, a rollback would be appropriate. @Joshua – Nij Dec 24 '18 at 20:38
  • @ Joshua, KCRA is reading from a "factsheet" - but they don't say what the origin of that fact sheet is. That said, common sense tells you that if you are furloughed (aka ' laid off') from your job, you are being told not to report to work. If you don't work why you you be expected to be paid? As to the other 400,000 that are being asked to work for an agency that has no funds to pay employees, These workers are reliant on congress to subsequently fund the agency and (potentially) pay them later. – BobE Dec 25 '18 at 18:14
  • @BobE There’s no “potentially” pay them later; employees who are ordered to work are legally entitled to pay as soon as their agency has appropriated funds. – cpast Dec 25 '18 at 23:11
  • @cpast while I agree, if the agency is not funded, it is possible that employees may have to sue to get their pay. No doubt they would win, but they still would have to go through the legal process. – BobE Dec 26 '18 at 04:53
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    You have a few misconceptions in your question. First, the government isn't running a tax surplus because the government will still have to eventually pay for stuff it would have if it hadn't shut down. Second, the shutdown isn't from running out of money. It's from money not being authorized for the next fiscal period. – RWW Dec 26 '18 at 16:07
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    To be "required" to do something means nothing more than not doing it will result in some consequence. When you see such a statement, you should look to find what those consequences are. – Acccumulation Jan 07 '19 at 21:00
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    @Acccumulation: Work without pay or we'll fire you is unlawful. – Joshua Jan 07 '19 at 21:10
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    @Joshua What law does it violate? Minimum wage laws? – Acccumulation Jan 07 '19 at 21:11
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    @Acccumulation: Indeed. I'm pretty sure a good lawyer can come up with a lot more, but that's a start. – Joshua Jan 07 '19 at 21:12
  • I think it's instructive to imagine it would be a private company not the government be doing it. Could a company require it's workers to work with only the promise to maybe pay them at some point in the future, possibly the very far future? What laws are there to prevent such a situation? Maybe the US administration should apply chapter 11 to itself, seemingly being unable to fullfill all its financial obligations at the moment. – NoDataDumpNoContribution Jan 22 '19 at 21:45
  • @Trilarion: I am aware of state laws that deal harshly with this behavior, but the only time I know of the state being able to impose its laws on the federal government during a shutdown was California managing to enforce its 3 day eviction notice in the national parks. – Joshua Jan 22 '19 at 21:47

2 Answers2

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First, slavery has literally nothing at all to do with whether or not someone is paid, nor with how much they're paid. Slavery and involuntary servitude are forced labor, not unpaid labor. If you are paying someone millions of dollars but threaten to kill them if they quit, that's involuntary servitude. If you pay them nothing but they're free to walk away, that's quite possibly legal (volunteering is often legal), often non-criminal, and if it is criminal might be just a misdemeanor.

Second, people who are required to work to a shutdown are in a pay status. They can't actually get paychecks until the government reopens, but they're legally entitled to their full pay for every hour worked. This is also why furloughed people aren't allowed to work: because federal employees are entitled to pay for hours worked, any work they do results in the government owing them money that hasn't been appropriated. Federal agencies can mostly only do that for essential tasks, so anyone not doing an essential task can't be allowed to work.

Lastly, people are only "required to work" in a shutdown in the same way civilian federal employees are always required to work: refusing means you can be fired, but you're certainly free to quit. Refusing also means you pretty much won't be paid back wages when the government reopens (if you refuse an order to work you're placed in AWOL status instead of furlough status, and back pay isn't given to people in AWOL status).

(I should note that this only applies to the pay for the hours you weren’t working; as mentioned above, employees are legally entitled to pay for hours worked. However, if you go AWOL after a week and the shutdown lasts for three, employees who spend all three weeks working are entitled to receive full back pay. Employees who worked for one week and were furloughed for two are entitled to one week’s pay, but will almost certainly get three [as Congress will almost certainly give back pay to furloughed employees]. Employees who worked for one week and were AWOL for two are entitled to one week’s pay, but will receive nothing for the two weeks they went AWOL and will possibly be fired.)

Military personnel are truly required to work (refusal can result in criminal punishment), but the 13th Amendment doesn't mean the military can't punish desertion or refusal to obey orders.

cpast
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    Ugh. Something else I can put down to bad reporting. – Joshua Dec 24 '18 at 00:39
  • "Federal agencies can mostly only [incur debts] for essential tasks, so anyone not doing an essential task can't be allowed to work." - No such exception appears in 31 USC 1341. 1342 does mention emergency operations, but does not specifically authorize incurring debts, so it is unclear to me that this is actually correct. – Kevin Dec 24 '18 at 02:56
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    @Kevin 1341 and 1342 are a pair; they used to both be section 665 until a statutory reorganization that was specifically not meant to change the substance. The OLC has analyzed 1342 (when it was 665(b)) and concluded it's really about accepting services for future compensation (since it's always been part of an antideficiency statute), so its exception authorizes those employees to work in a shutdown. See 5 Op. O.L.C. 1. – cpast Dec 24 '18 at 03:19
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    "If you pay them nothing but they're free to walk away..." this example is facetious because the government employees did not expect to be paid nothing. In fact, I find this a poor answer because it fails to address that there has essentially been a breach of contract on the part of the government, yet it's the so-called "essential" employees who are carrying the can by effectively being coerced into continuing to work via the threat of non-pay and/or dismissal. – Ian Kemp Dec 24 '18 at 13:55
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    @IanKemp Being "coerced into continuing to work via the threat of non-pay and/or dismissal" is called a job. That's how all jobs work. If the government is fully funded, employees are still required to work or else they won't be paid and will be fired. Also, breach of contract is not generally a crime and certainly isn't involuntary servitude, and as I addressed in my answer, employees who work during the shutdown are still in a pay status (paychecks are just delayed). – cpast Dec 24 '18 at 18:54
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    @IanKemp, the volunteering example is not presented as representative of any government employees. It is presented as a counterexample to the OP's false premise that work without pay is a characterization of slavery. Moreover, to the extent that there is a breach of contract, it does not occur until the government actually fails to pay salary or wages as required by whatever explicit or implied contract exists, which might, in fact, not place strict requirements on exactly when such pay is remitted. Every government worker called upon to work during a shutdown will, eventually, be paid. – John Bollinger Dec 24 '18 at 18:57
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    @JohnBollinger "Every government worker called upon to work during a shutdown will, eventually, be paid." Are you sure that's guaranteed? It is my understanding that during every previous shutdown every employee has gotten back pay, but that that was a decision that had been made and allowed after the fact, and that it was not fait accompli. – Beska Dec 24 '18 at 19:23
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    @Beska Employees who work are guaranteed back pay. Furloughed employees are not, although Congress has always granted it. See the OPM guide. – cpast Dec 24 '18 at 19:53
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    Can you imagine if a private employer asked their employees to continue working while the employer chose not to pay them and explained that they would be fired and denied back pay if they chose not to work while they weren't being paid with all the assurance they had that they would get paid being precedent? – David Schwartz Dec 25 '18 at 22:45
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    @DavidSchwartz I recommend actually reading the post before saying stupid things like “all the assurance they had that they would get paid being precedent.” Also, I’d like to point out that most jobs have a rule where not showing up to work when you’re supposed to means you can be fired, and that you’re rarely owed pay for time you refused to work. – cpast Dec 25 '18 at 23:10
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    @cpast At least in Europe an employer cannot legally withhold payment of an employee, That's plain and simple breach of contract ("oh you're being paid, the payment is just delayed" is a ridiculous excuse) - is that really legal in the US? If not, I don't see how the comparison would work. – Voo Dec 26 '18 at 00:21
  • @Voo: The majority of employment in the U.S. is "at-will", one consequence of which is that most employment contracts can legally change without advance notice. So something like "If you work this week, I'm not going to pay you on time for that work" is not necessarily breach of contract, because it's essentially a new employment contract that the employee can theoretically accept (=keep working) or decline (=quit). (Of course, it may still run afoul of explicit terms of an existing contract, or of state or federal employment regulations.) – ruakh Dec 26 '18 at 07:06
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    @ruakh I know about at-will employment, but if your contract says e.g. you're paid on the 15th every month, can the employer really change the terms of the contract at the end of the term retrospectively? For the next month I can see how that works though (although at-will employment isn't legal in all states so what about the employees there?) – Voo Dec 26 '18 at 11:13
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    @Voo Employees get paid on time for all work that happened before the shutdown. Even though the agency has no appropriations at the moment, it can still actually distribute last year's money for activities that happened last year (an appropriation's time limit is about when the money is committed, not when the direct deposit happens). As for state laws, the US government is not bound by state employment law. – cpast Dec 26 '18 at 15:58
  • So, what you're saying is that it's not slavery, just blackmail? If I work without getting paid for a month, and then quit because I really need the money, I don't get paid for that month? – David Thornley Jan 09 '19 at 21:19
  • @DavidThornley I think I found the part that confused you. – cpast Jan 10 '19 at 02:10
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    This answer is all nice and fine for short periods of shutdowns. However, if a shutdown gets longer and longer and given that there cannot be a guarantee that the missing payment is done fully (possibly with interest and additional compensation of the suffering included) I would say that the practice becomes borderline illegal. Just imagine a private company would hold back payments. – NoDataDumpNoContribution Jan 22 '19 at 21:35
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As a federal worker you have facts missed. You assume too much. When the federal government labels an employee 'essential', there are rules that should have been followed to get there. One of these is non-excepted activities, you need to determine how many employees you need to get your non-excepted activities accomplished; this is only one of the criteria. Since in the past there haven't been many shutdowns of extended length, various Agencies simply called an entire classification 'essential' giving little concern to any of the criteria. This was expedient and fast. Roll ahead to now, more furloughs of greater length and no one wants to put up with being ping pong balls. Federal employees want people paid and that decision is left to government. The back pay bill is already signed so all employees, essential and non-essential, will get back pay for all furloughed hours. But many employees have only ever been called 'essential' with no consideration of what activities that they are doing and may be entitled to be on furlough.

Airrachet
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  • You assume badly. 2) When I wrote the question there was no back pay bill signed. 3) Wait months to get paid is about as bad as not get paid.
    • – Joshua Jan 15 '19 at 22:13