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SOME SOLACE FOR FURLOUGHED EMPLOYEES

On January 16, 2019, the President signed into law the "Government Employee Fair Treatment Act of 2019," promising back pay for furloughed federal employees. The principal provisions are:

(2) 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, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee's standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.

(3) During a covered lapse in appropriations, each excepted employee who is required to perform work shall be entitled to use leave under chapter 63 of title 5, or any other applicable law governing the use of leave by the excepted employee, for which compensation shall be paid at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.

S.24 - Government Employee Fair Treatment Act of 2019 (congress.gov)

Providing some assistance in determining how benefits are to be determined for furloughed employees, some essential employee at MSPB posted a factsheet in January:

FACT SHEET: Pay and Benefits Information for Employees Affected by the Lapse in Appropriations (mspb.gov)

FEDERAL CIRCUIT

MORE DUE PROCESS

Still in business, the Federal Circuit issues its decisions, including of significance for civil service law a reaffirmation that a material variance between the charge stated in the proposal and the basis for sustaining that charge by the agency deciding official or the MSPB results in a due process violation and reversal of the action. Lesson learned (until the next similar decision): charges should be concise, plainly written, and deciding officials should either sustain the charge if supported by the evidence file as informed by the reply, drop the charge entirely, or direct reissuance of a proposal that properly states a sustainable charge. If the charge depends on a particular set of facts stated in the narrative supporting the charge, and it turns out that the narrative is not supportable because the drafter of the proposal got it wrong, it is time to rethink and possibly rewrite and reissue that proposal. Due process errors can be costly for the agency in backpay and counsel fees, not to mention the disruption of an employee's life economically and emotionally when forced into years of litigation. Ho v. HUD, Fed. Cir. (2018-1147 Jan. 14, 2019).