U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce
GUIDANCE AND INFORMATION ON FURLOUGHS
Furlough Under
Adverse Actions Procedures (General)
This section discusses two types of furloughs--a "shutdown" or
"emergency" furlough and a "save money" furlough. In a
"shutdown" furlough, the agency no longer has the necessary funds to operate and
must shut down those activities which are not excepted by Office of Management and Budget
(OMB) standards. In many cases, the agency will have very little lead time to plan for the
furlough, making it an "emergency" furlough. A good example of a
"shutdown" or "emergency" furlough is if there are no fiscal year 1999
funds appropriated for an agency by October 1, 1998.
On the other hand, a "save money" furlough is a planned event by an agency which is designed to absorb reductions necessitated by downsizing, reduced funding, lack of work, or any other event which requires the agency to save money. A "save money" furlough is typically a "non-emergency" furlough in that the agency has sufficient time to reduce spending and therefore give adequate notification of its specific furlough plan and how many furlough days will be required. A good example of a "save money" furlough would be when, as a result of Congressional budget decisions, an agency is required to absorb additional reductions over the course of a fiscal year. In order to provide agencies with a broad spectrum of information on these matters, both types of furloughs are addressed in the following questions and answers.
1. Q. What is a furlough?
2. Q.What can agencies do to prepare for the likelihood that there may be neither appropriations nor a continuing resolution passed by the beginning of the new fiscal year?A. A furlough is the placing of an employee in a temporary nonduty, nonpay status because of lack of work or funds, or other nondisciplinary reasons. For most employees, there are two basic categories of furloughs, each involving different procedures. A furlough of 30 calendar days or less is covered under 5 CFR Part 752, adverse action procedures. A furlough of more than 30 calendar days is covered under 5 CFR Part 351, reduction in force procedures. All furloughs for Senior Executive Service members are covered under 5 CFR Part 359, Subpart H.
A. OPM recommends agencies take the following steps:
- Communicate with employees and their representatives regarding agency plans if it becomes necessary to effect an orderly suspension of agency operations.
- Prepare draft "emergency" furlough decision notices and plans for distribution to employees to the extent possible within the limited time available.
- Determine which positions are excepted under the guidelines established by the Office of Management and Budget (OMB). See Appendix A for copies of OMB bulletins and memoranda.
3. Q. For furloughs necessitated by lapsed appropriations, is an agency required to provide 30 calendar days advance written notice and an opportunity to respond prior to issuing a decision to furlough?
A. No. OPM's regulations provide for emergency adverse action furlough without the necessity for advance written notice proposing the action. Section 752.404 (d)(2) of 5 CFR provides:
The advance written notice and opportunity to answer are not necessary for furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or sudden emergencies requiring curtailment of activities.
OPM's position that this regulation applied to lapsed appropriations was upheld by the Federal Circuit in Horner v. Andrzjewski et. al., 811 F.2d 571 (Fed. Cir. 1987). Similarly, under 5 CFR 359.806 (a), the full notice period for career SES appointees may be shortened or waived in the event of unforeseeable circumstances, such as sudden emergencies requiring immediate curtailment of activities.
4. Q. In the event of lapsed appropriations, can an employee be furloughed without first receiving a written notice of decision to furlough?
A. Yes. While an employee must ultimately receive a written notice of decision to furlough, it is not required that such written notice be given prior to effecting the furlough. Issuance of prior written notice is preferable, but when prior written notice is not feasible, then any reasonable notice (telephonic or oral) is permissible.
5. Q. What information should be included in the notice of decision when no advance notice is issued?
A. The notice must specify the reason for the furlough and state that the usual 30 calendar days advance notice was not possible due to the emergency requiring curtailment of agency operations. If some employees in a competitive level will not be furloughed because they are performing one of the excepted activities defined by OMB guidelines, we recommend a statement such as the following:
If employees are being retained in your competitive level, they are required for orderly suspension of agency operations, or they are performing one of the excepted activities defined by the Office of Management and Budget.
There are other reasons an employee may not be furloughed. The language in sample letters at Appendices C and E may be applicable. The notice must include a statement of applicable appeal and grievance rights. Agencies are reminded that adverse action coverage for excepted service employees was substantially expanded by the Civil Service Due Process Amendments of 1990 (P.L. 101-376). If a copy of the Merit Systems Protection Board appeal form is not attached to the decision notice, the notice should include information on how to obtain a copy of the form.
6. Q. Suppose an agency wishes to effect a furlough action discontinuously (e.g., one workday per week for 15 weeks) rather than consecutively, to lessen the effect on the agency's employees or its workload. These furloughs will be used for "save money" situations. Is there any prohibition on doing so?
A. Nothing in law or regulation prohibits discontinuous furloughs, and they have been upheld by the Merit Systems Protection Board on appeal. Moreover, discontinuous furloughs can be advantageous to both employees and the agency by distributing the furlough days over time, thereby minimizing the financial impact on employees as well as lessening disruption of agency services to the public.
In OPM, 22 FLRA No. 29, the Federal Labor Relations Authority held that a proposal giving the furloughed employee the right to determine whether his/her furlough was to be continuous or discontinuous is a negotiable 7106 (b)(3) "appropriate arrangement."
7. Q.If a discontinuous furlough extends for more than 30 calendar days, is it a "short" furlough covered by adverse action procedures in 5 CFR Part 752, or is it covered by the reduction in force procedures of 5 CFR Part 351?
A. Based on the definition of "day" as "calendar day" (5 CFR 210.102 and 752.402), OPM has determined that 22 workdays equate to 30 calendar days for adverse action purposes for employees not under alternative work schedules. Thus, a furlough of 22 workdays or less would be covered by adverse action procedures, and one of more than 22 workdays would be covered by the RIF procedures of Part 351. (If a holiday is included in a furlough of 22 consecutive workdays, the furlough might equate to more than 30 calendar days. See Holidays.)
8. Q. What procedural rights would apply for a furlough of 30 calendar days or less for employees covered under 5 CFR Part 752?
A. For a short furlough of a covered employee, the law (5 U.S.C. 7513) gives a covered employee the following rights:
- At least 30 calendar days advance written notice by the agency stating the specific reasons for the proposed action. (Typically, the reasons for the action would involve a lack of work or funds.) The 30 calendar day period begins upon an employee's receipt of the written notice. Therefore, agencies should plan accordingly to allow time for mailing the notice when hand-delivery is not possible.
- At least seven calendar days for the employee to answer orally and in writing to the proposal notice and to furnish documentary evidence in support of his or her answer. (A summary of any oral answer must be made and maintained by the agency.)
- The right of the employee to be represented by an attorney or other representative.
- A written decision by the agency with the specific reasons for its action at the earliest time practicable.
- The right to appeal the agency's action to the Merit Systems Protection Board.
In addition, the regulations (5 CFR 752.404) require that the agency inform the employee of the right to review the material it relied on to support the reasons for its action. The agency must designate an oral reply official who can either make or recommend a decision, and must issue its decision at or before the effective date of the action. The regulations (5 CFR 752.405) also provide that where applicable, the affected employee may elect to grieve under a negotiated grievance procedure (NGP) or appeal to the Merit Systems Protection Board, but not both.
NOTE: Under 5 CFR 752.404 (b)(2), if the agency is furloughing some, but not all, employees in a competitive level, the notice of proposal must state the basis for selecting the particular employee as well as the reasons for the furlough. Agencies who anticipate furloughing some, but not all employees, should ensure the accuracy of established competitive levels in order to meet their obligations under this regulation. In general, the term competitive level refers to positions at the same grade level and classification series, the duties of which are interchangeable (See 5 CFR 351.403(a)). Where bargaining unit employees are concerned, additional procedural rights may be provided by their negotiated agreement.
9. Q. In addition to statutory and regulatory procedural requirements, what additional forms of communication should an agency consider in effecting a furlough?
A. Considering the uncertain and changing circumstances surrounding furlough, agencies should make efforts toward assuring that employees are provided with up-to-date and accurate information as warranted. This may be done through effective union-management communication, employee briefings, periodic bulletins, newsletters or other means available to agencies.
10. Q. How should the decision letter be framed if the agency has not set a specific number of furlough days in the proposal?
A. While it is desirable when possible to inform the affected employee of a specific number of days in the decision letter, the agency needs only to set out the maximum time that may be involved, so employees have as much information as possible, if they choose to appeal.
11. Q. If an employee decides to challenge a discontinuous furlough, from what point would the time for appeal to the Merit Systems Protection Board run? For a bargaining unit employee filing a grievance under the negotiated grievance procedure (NGP)?
A. Employees cannot file an appeal until the first day after the effective date of the adverse action (in this case, the first day after the initial day of furlough) and must file not later than the 30th calendar day after the effective date of the furlough. The time limits and other procedures applicable to bargaining unit employees are spelled out in applicable provisions of negotiated agreements.
Employee Coverage
and Procedural Requirements
12. Q. What procedures are applicable for probationers, employees under temporary
limited appointments in the competitive service, employees who are nonpreference
eligible employees in the excepted service with less than 2 years of continuous
service, and others not covered by 5 U.S.C. Chapter 75?
A. There are no mandated procedures; however, agencies should ensure that all procedures required by negotiated agreements or internal personnel policies are followed.
13. Q. What about Senior Executive Service (SES) appointees?
A. Furloughs of SES career appointees (other than reemployed annuitants) are covered under 5 U.S.C. 3595a and Subpart H of 5 CFR Part 359. The regulations provide only for a single 30-calendar day advance written notice, which must tell the appointee: the reason for the furlough; the expected duration of the furlough and the effective dates; the basis for selecting the appointee when some but not all SES appointees in a given organizational unit are being furloughed; the location where the appointee may inspect the regulations and records pertinent to the action; the reason, if the notice period is less than 30 calendar days; for a probationer, the effect (if any) on the duration of the probationary period; and the appointee's appeal rights to the Merit Systems Protection Board (MSPB), including the time limit for the appeal and the MSPB office to which it should be sent. A career appointee may appeal a furlough of any length. Competitive procedures are required to select career appointees for any furlough of more than 30 calendar days (or 22 workdays).
An agency may furlough an SES noncareer or limited appointee, or a reemployed annuitant holding a career appointment; there are no specific procedures prescribed in law or regulation for effecting such an action. If an agency chooses to establish its own procedures, OPM suggests that such procedures include certain minimum features, e.g., whenever possible, a written notice at least 1 day before the furlough which states the reasons for, duration of, and effective dates of the furlough. Furlough of an SES noncareer or limited appointee, or a reemployed annuitant holding a career SES appointment, is not appealable to MSPB.
14. Q. How do agencies effect adverse action furloughs of administrative law judges?
A. 5 U.S.C. 7521 provides that adverse action furloughs of 30 calendar days or less may be taken against administrative law judges, "only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board." Procedures for implementing such an action are described in 5 CFR 1201.137-141.
15. Q. Is it possible for the Office of Personnel Management (OPM) to issue one consolidated notice to the Merit Systems Protection Board (MSPB) regarding the furlough of all administrative law judges due to a lapse of appropriations?
A. In reviewing the requirements of the law at 5 U.S.C. 7521 and applicable regulations at 5 CFR 930.214 and 5 CFR 1201.137- 141, we believe that the authority to issue a notice to MSPB is vested solely in the respective employing agencies and, therefore, it is not appropriate for OPM to issue one consolidated notice to MSPB regarding the furlough of all administrative law judges due to a lapse of appropriations. When an agency determines that it is necessary to furlough administrative law judges, it should follow the procedures set out at 5 CFR Part 1201 to the extent permitted under a lapse of appropriations. We encourage agencies employing large numbers of administrative law judges to contact MSPB in an effort to streamline the process as much as is legally possible.
16. Q. Are individuals appointed by the President subject to furlough?
A. Individuals appointed by the President, with or without Senate confirmation, who otherwise are not subject to 5 U.S.C. 6301 and attendant regulations governing leave in the Federal service, are not subject to furlough. The salary of such a Presidential appointee is an obligation incurred by the year, without consideration of hours of duty required. Thus, the Presidential appointee cannot be placed in a nonduty, nonpay status. If a Presidential appointee, however, chooses to be in a nonpay status, he may return part of his salary to his employing agency, provided that the agency has authority to accept gifts, or to the Treasury. Regardless of the Presidential appointee's choice, his entire salary is recorded for tax purposes. The following exception must be noted: former career Senior Executive Service (SES) appointees who took appointments at level V of the Executive Schedule or higher and elected to retain SES leave benefits under 5 U.S.C. 3392(c), are subject to furlough at the discretion of the agency.
17. Q. What about persons working for Federal agencies under mobility agreements pursuant to the Intergovernmental Personnel Act (IPA)?
A. The specific authority for furloughing persons who are working under mobility agreements pursuant to the IPA, either inside the Federal government or with other organizations, will depend upon the nature of individual agreements, the status of the appointments, and/or the funding arrangements for the assignments. As a general rule, the following principles are applicable in determining whether to furlough personnel on IPA mobility assignments:
- Personnel from non-Federal organizations on appointments to the Federal government are subject to furlough in the same manner as other employees.
- Personnel on detail to Federal agencies from non-Federal organizations may continue working, provided that the non-Federal organizations pay the total costs of the detail.
- Personnel on detail to Federal agencies from non-Federal organizations which share part of the costs of detail may continue to work if the Federal portion of the cost was obligated from prior appropriations at the time of the IPA mobility agreements. In the event that a furlough takes place in the second year of the agreement at which time no funds are appropriated, the assignment should be terminated.
- Personnel on detail to Federal agencies from non-Federal organizations which do not pay or share the costs of the detail are subject to furlough in the same manner as other employees.
18. Q. Would employees who are detailed or assigned outside the agency during part, or the entire period, of furlough be subject to furlough?
A. Employees on a reimbursable detail from the agency would not be subject to furlough due to lack of funds if full reimbursement continued. If reimbursement were reduced or eliminated, the employee would be subject to furlough. Agencies may prorate the required furlough time for employees being paid by the outside organization during only part of the furlough period. Federal employees assigned to non-Federal organizations who are on leave without pay from their Federal positions may continue working.
19. Q. How should agencies schedule a "save money" furlough for employees on flexible or compressed work schedules under an alternative work schedules (AWS) program?
A. In scheduling a furlough for employees on AWS, the furlough may be expressed in terms of days or hours. If a furlough is expressed in terms of a number of days, for a full-time employee under a flexible work schedule, the length of a furlough day is 8 hours or, at the agency's discretion, the number of hours the employee is regularly scheduled to work (basic work requirement) on each day the employee is furloughed. For a part-time employee under a flexible work schedule, the length of a furlough day is determined by dividing the number of hours the employee is normally scheduled to work biweekly by the number of workdays in the employee's biweekly tour of duty.
In scheduling a furlough in terms of days for an employee on a compressed work schedule, agencies should take care to make sure that the furlough is scheduled for the days and times during which employees otherwise would be scheduled to work under the compressed work schedule. The length of a furlough day under a compressed work schedule is the same as the length of the employee's compressed workday; e.g., the length of a furlough day under a 4-10 compressed work schedule is 10 hours.
For ease of administration and equity, agencies may also schedule furloughs for all employees (both alternative work schedule and regular tours of duty) in terms of hours. For example, all full-time employees would be furloughed for 40 hours, even though for some employees the actual number of furlough days could be more or less than 5 days.
20. Q. How should an agency determine the number of furlough hours for alternative work schedule (AWS) employees during a "shut-down" or "emergency" furlough? Can an employee reschedule a nonworkday that occurred during the furlough?
A. Employees would be furloughed for the number of hours they were scheduled to work on the days for which there was a lapse in appropriations. Each agency that has an AWS program should have a policy specifying how flexible and compressed work schedules must be established and when they may be changed. Normally, such schedules are established in advance of the pay period involved. Under such a policy, an AWS nonworkday scheduled to occur during a lapse in appropriations should not be changed after the pay period begins.
21. Q. How would the agency schedule a furlough for part-time employees?
A. Furlough of part-time employees must comply with the procedures of 5 CFR Part 752 or Part 351 if the employees are otherwise covered. In scheduling such furloughs, it would be equitable to compute the furlough days in the same proportion to those days scheduled for full-time employees, based on work schedules. (The hours of furlough might be computed as a percentage of the work schedule for full-time employees. For example, if an employee worked 64 hours a pay period, that would equate to 64/80 of a full-time work schedule, or 80%. This percent could then be multiplied by the number of hours which a full-time employee is furloughed during a pay period.) Again, if some part-timers in a competitive level are furloughed but not others, 5 CFR 752.404 (b)(2) would require that the notice of proposed action must tell the employees the basis for selecting those furloughed.
22. Q. What about employees who work on a seasonal or intermittent basis?
A. Seasonal employees are recalled to duty at identified periods of the year in accordance with preestablished conditions. Intermittent employees are non-full-time employees without a regularly scheduled tour of duty. Whether either group is called for work during the period in which furloughs are scheduled is discretionary with agencies.
Excepted Employee
23. Q. What is the difference between an "excepted employee" and an "emergency employee?" (Note: an "excepted employee" is not to be confused with an employee in the excepted service)A. The term "excepted employee" refers to employees who are excepted from a furlough by law because they are (1) performing emergency work involving the safety of human life or the protection of property, (2) involved in the orderly suspension of agency operations, or (3) performing other functions exempted from the furlough. See Appendix A for copies of OMB issuances which provide guidance on application of these criteria.
The term "emergency employee" is used to designate those employees who must report for work in emergency situations--e.g., severe weather conditions, air pollution, power failures, interruption of public transportation, and other situations in which significant numbers of employees are prevented from reporting for work or which require agencies to close all or part of their activities.
24. Q. If, during a lapse in appropriations, Federal agencies are operating under an "unscheduled leave" policy because of emergency weather conditions, which employees should report for work?
A. Excepted employees are required to report for work on time under these circumstances. Agencies and employees are reminded that, during a lapse in appropriations, all affected employees must be either (1) at work performing excepted activities (excepted employees) or (2) in a furlough status (nonexcepted employees). Therefore, agencies may change the status of employees as additional needs arise. In addition, if an excepted employee is unable to report for work because of emergency conditions, he or she must be placed in a furlough status until such time as the employee reports for work.
Employment during Furlough
25. Q. May employees take other jobs while on furlough?A. Even while on furlough, an individual is an employee of the Government. Therefore, the Executive Branch-wide standards of ethical conduct (the standards), at 5 CFR Part 2635, which include rules on outside employment, continue to apply to employees on furloughs. Additionally, there are statutes which prohibit certain outside activities. Agencies also have varying supplemental rules regarding the requirement for prior approval of outside employment, and some prohibit certain types of outside employment. Therefore, before engaging in outside employment, employees should review these regulations and then consult their own agency ethics official to learn if there are any agency-specific supplemental rules governing the employee.
26. Q. What happens to employees' benefits (e.g., retirement, health benefits, life insurance, leave) if they receive temporary appointments in another agency while furloughed?
A. The leave should be transferred as if the employees had been transferred (see Comptroller General opinion B-167975, September 1, 1970). Retirement, health benefits, life insurance, and leave should be handled as if the employees had been transferred.
27. Q. May an employee volunteer to do his or her job on a nonpay basis during a furlough period?
A. No. Unless otherwise authorized by law, an agency may not accept the voluntary services of an individual. (31 U.S.C. 1342)
28. Q. May an employee work on a furlough day in exchange for taking a day off at another time for religious observances?
A. No. The statute that permits employees to take compensatory time off for religious observances (5 U.S.C. 5550(a)) does not authorize an agency to accept the voluntary services of any individual on a furlough day. Periods of time worked in exchange for taking time off for religious observances must be scheduled on non-furlough days.
Pay and Deductions From Pay
29. Q. If a furlough begins on October 1st due to a lapse of appropriations, will employees receive a paycheck for the last pay period in September?A. Under the current Office of Management and Budget (OMB) guidance, employees will receive this paycheck. Although the payroll for the last pay period in a fiscal year will be processed in October, and potentially during a period of furlough, the minimum number of payroll staff necessary for this process will be exempt from furlough for the minimum time required to issue the checks, including checks for the last pay period in September. This guidance can be found in OMB's August 28, 1980, Bulletin No. 80-14, Shutdown of Agency Operations Upon Failure by the Congress to Enact Appropriations, paragraph 3.b.(1) Appropriations and Funds. OMB has reviewed and concurs in this answer.
30. Q. When an employee's pay is insufficient to permit all deductions to be made, what is the order of withholding precedence?
A. Each employing agency is responsible for establishing an order of precedence for applying deductions from the pay of its civilian employees when gross pay is insufficient to cover all authorized deductions. The established order of precedence must comply with any applicable laws, regulations or other legal authority, including the regulations in title 5 CFR: section 550.301 (dealing with allotments), section 550.805(e) (dealing with back pay awards), section 550.1104 (dealing with collecting debt to the Government via salary offset), section 581.105 (dealing with garnishments for child support and/or alimony), and section 582.103 (dealing with garnishments for commercial debt). Consistent with 5 U.S.C. 8334(a)-(c) and 8422(a)-(c), retirement deductions are made before any other deduction.
31. Q. Can an employee obtain a loan from their Thrift Savings Plan (TSP) account while in a nonpay status? What happens if an employee has a TSP loan and is placed in a nonpay status?
A. An employee may not obtain a loan from their TSP account while in a nonpay status. As to current TSP loans, employees should refer to the TSPFact Sheet - Effect of Nonpay Status on TSP Participation. This issuance is available from the TSP web site at www.tsp.gov.
Service Credit for Various Purposes
32. Q. Is furlough or leave without pay (LWOP) considered a break in service?
A. No, both mean the employee is in a nonpay, nonduty status for those days/hours. However, extended furlough or LWOP may affect the calculation of creditable service for certain purposes. (See Question 33.)
33. Q. To what extent does nonpay status affect civil service benefits and programs?
A. Nonpay status (which includes furlough, leave without pay, absence without leave, and suspension) is credited as follows:
- For career tenure, the first 30 calendar days of each nonpay period is creditable service.
- For completion of probation, an aggregate of 22 workdays in a nonpay status is creditable service.
- For X-118 qualification standards, there is no requirement to extend qualifying periods by the amount of nonpay status. However, agencies may require such extensions in order to meet training requirements or ability to perform.
- For time-in-grade requirements, nonpay status is creditable service.
- For retirement purposes, an aggregate nonpay status of 6 months in any calendar year is creditable service. Coverage continues at no cost to the employees while in a nonpay status. When employees are in a nonpay status for only a portion of a pay period, their contributions are adjusted in proportion to their basic pay (5 U.S.C. 8332 and 8411). The exception would be an employee who had substantial time in a nonpay status earlier in the year if the furlough causes him or her to have more than six months time in a nonpay status during the calendar year.
- For health benefits, enrollment continues for no more than 365 days in a nonpay status. The nonpay status may be continuous or broken by periods of less than four consecutive months in a pay status (5 CFR 890.303(e)). The Government contribution continues while employees are in a nonpay status. The Government also is responsible for advancing from salary the employee share as well. The employee can choose between paying the agency directly on a current basis or having the premiums accumulate and be withheld from his or her pay upon returning to duty.
- For life insurance, coverage continues for 12 consecutive months in a nonpay status without cost to the employees (5 CFR 870.401(c)) or to the agency (5 CFR 870.401(d)). The nonpay status may be continuous or it may be broken by a return to duty for periods of less than four consecutive months.
- For within-grade increases, an aggregate of 2 workweeks nonpay status in a waiting period is creditable service for advancement to steps 2, 3, and 4 of the General Schedule; four workweeks for advancement to steps 5, 6, and 7; and six workweeks for advancement to steps 8, 9, and 10 (5 CFR 531.406(b)). For prevailing rate employees (WG, WL, and WS schedules), an aggregate of one workweek nonpay status is creditable service for advancement to step 2, three weeks for advancement to step 3, and four weeks for advancement to steps 4 and 5 (5 CFR 532.417(b)).
- For annual and sick leave, when a full-time employee accumulates 80 hours of leave without pay, the amount of annual and sick leave that may be accrued in that pay period is reduced by the amount of leave the employee would normally earn during the pay period (5 CFR 630.208). When a part-time employee is in a nonpay status, he or she will accrue less annual leave and sick leave, since part-time employees earn leave on a pro-rata basis--i.e., based on hours in a pay status (5 CFR 630.303 and 630.406). For purposes of computing accrual rates for annual leave, creditable service for time in a nonpay status is limited to an aggregate of 6 months in a calendar year (5 U.S.C. 6303(a) and 8332(f)).
- For reduction in force, an aggregate of 6 months nonpay status in a year is creditable service.
- For severance pay, nonpay status time is fully creditable for the 12-month continuous employment period required by 5 U.S.C. 5595(b)(1) and 5 CFR 550.705. However, for purposes of determining service creditable towards the computation of an employee's severance pay fund under 5 U.S.C. 5595(c)(1) and 5 CFR 550.707-708, no more than 6 months of nonpay status time per calendar year is creditable service. (This is the same rule used in crediting nonpay status time as "service" in determining annual leave accrual rates.)
- For the Thrift Savings Plan (TSP), agencies should refer to the Thrift Savings Plan Bulletin for Agency TSP Representatives, No. 97-43, dated December 18, 1997. For additional information, agency representatives may contact the Federal Retirement Thrift Investment Board at (202) 942-1460. Employees should refer to the TSP Fact Sheet - Effect of Nonpay Status on TSP Participation. Both issuances are available from the TSP web site at www.tsp.gov.
- For military duty or workers' compensation, nonpay status for employees who are performing military duty or being paid workers' compensation counts as a continuation of Federal employment for all purposes upon the employee's return to duty.
Retirement and Insurance
34. Q. When a furlough occurs during the three years of service prior to retirement, what effect will time in a furlough status have on an employee's high-3 average?A. Generally there will be no effect on the high-3 average unless the furlough causes the employee to be in a nonpay status for more than 6 months during the calendar year.
35. Q. Are the retirement rules concerning the effect of a furlough the same for employees under the Civil Service Retirement System and the Federal Employees Retirement System?
A. Yes.
36. Q. What happens to retirement and insurance in a discontinuous furlough?
A. As explained above, retirement credit is not affected as long as an employee does not exceed 6 months of nonpay status in a calendar year. Retirement deductions are taken on the basic pay the employee earns during the pay period.
Federal Employee Health Benefit (FEHB) premiums are deducted from the employee's pay. If the employee's pay is insufficient to cover the FEHB premium, the agency must forward the full premium to the Employee Health Benefits Fund. The employee can pay the premium directly to the agency or have it withheld from pay when he or she returns to regular duty. The enrollment continues for up to 365 days of nonpay status. The nonpay status may be a continuous period or it may include an employee's return(s) to pay status for a period(s) of less than 4 consecutive months.
Federal Employee Group Life Insurance (FEGLI) coverage continues, and contributions made by the employee and the employee's agency continue if the employee's salary in each pay period is sufficient to cover deductions. If the employee's salary is insufficient to cover his or her withholding, the employee's coverage will continue for up to 12 months without cost to the employee or the employee's agency.
37. Q. What happens if employees cancel Federal Employee Health Benefit (FEHB) coverage while in a nonpay status in order to avoid the expense?
A. Employees who cancel FEHB coverage to avoid payment of premiums while in a nonpay or reduced-pay status do not have to wait for an FEHB open season to re-enroll. Cancellation of FEHB coverage will not affect an employee's right to carry such coverage into retirement or while in receipt of workers' compensation.
38. Q. What will happen to employees who would have retired while their agencies were shut down?
A. For employees who, on or before the requested retirement date, submitted some notice of their desire to retire, agencies should, when the lapse in appropriations ends, make the retirement effective as of the date requested. The retirement request may be informal (such as a letter requesting retirement), and can be either mailed or personally submitted to the agency (even if put under the door). Any additional required paper work such as the formal retirement application form, may be completed when the agency reopens. No time spent by the retiree in such actions after the effective date of the retirement may be considered as duty time, since the individual would no longer be an employee of the agency.
Some employees may request retirement retroactive to a date prior to submission of the request. The Comptroller General (CG) has issued guidance permitting retroactive personnel actions (including retirements) only under limited enumerated circumstances. It will be up to the employing agency to determine in each case whether the OPM's requirements and the CG's guidance have been met.
At 58 Comp. Gen. 51, at 53 (1978), the Comptroller General stated:As a general rule a personnel action may not be made retroactive so as to increase the rights of an employee to compensation. We have made exceptions to this rule where administrative or clerical error (1) prevented a personnel action from being effected as originally intended, (2) resulted in nondiscretionary administrative regulations or policies not being carried out, or (3) has deprived the employee or a right granted by statute or regulation.
39. Q. Will an employee continue to be covered under the Federal Employee Health Benefits (FEB.) program if the agency is unable to make its premium payments on time?
A. Yes, the employee's FEB. coverage will continue even if an agency does not make the premium payments on time.
40. Q. If an employee changed his or her plan during open season and the paperwork was not processed by the agency, under which plan should the employee seek services or coverage?
A. An employee should seek services or coverage under the new plan elected during the open season when that election becomes effective. Open season changes are effective the first pay period beginning on or after January 1. (Note: Proposed regulations to make all changes effective January 1 have been published) In addition, new enrollments do not take effect until the employee has been back in pay status for any part of the prior pay period. If the employee has a copy of the SF-2809, he or she should present it to the health care provider when seeking services. However, new enrollments do not take effect until the employee has been in pay status for any part of the prior pay period.
Holidays
41. Q. May employees be furloughed on a holiday?
A. Employees may be furloughed for periods of time that include holidays. However, the selection of the furlough period in question should be justified on programmatic and administrative grounds that are unrelated to the fact that the period includes a holiday. For example, an agency may not properly furlough employees for a 3-day period, the middle of which is a holiday, for the sole purpose of saving 3 days' pay while losing only 2 days of work. (See Comptroller General opinion B-224619, August 17, 1987.) Neither would it be proper to furlough an employee solely on a holiday. (See Comptroller General opinion B-222836, May 8, 1986.)
42. Q. If employees are furloughed on the last workday before a holiday or the first workday after a holiday (but not on both days), will they be paid for the holiday?
A. Yes. The general rule is that an employee is entitled to pay for a holiday so long as he or she is in a pay status on either the workday preceding a holiday or the workday following a holiday. The employee is paid for the holiday based on the presumption that, but for the holiday, the employee would have worked. (Note: A holiday should not be the first or last day of the period covered by a furlough.)
43. Q. If employees are furloughed on the last workday before a holiday and the first workday after a holiday, will they be paid for the holiday?
A. No. If a furlough includes both the last workday before the holiday and the first workday after the holiday, the employee is not entitled to pay for the holiday because there is no longer a presumption that, but for the holiday, the employee would have worked on that day. (See Comptroller General opinion B-224619, August 17, 1987.)
44. Q. Can excepted employees be required to perform work on a holiday that occurs during a furlough?
A. Yes. Each agency is responsible for determining which excepted activities must be performed on a holiday in order to carry out functions related to national security, protection of life or property, or the orderly suspension of agency operations. If an excepted employee refuses to report for work on a holiday after being ordered to do so, he or she can be considered absent without leave (AWOL) and may be charged with insubordination.
45. Q. What pay entitlements will accrue to an excepted employee who performs work on a holiday?
A. The Government will be obligated to pay an excepted employee who performs work on a holiday according to the normal rules governing pay for work on a holiday. Under these rules, an employee would receive his or her rate of basic pay, plus holiday premium pay at a rate equal to the employee's rate of basic pay. In addition, if such an employee performs officially ordered or approved overtime work on a holiday (i.e., work in excess of his or her basic non-overtime work requirement for that day), the employee would receive overtime pay (or compensatory time off) for that work. Of course, an employee cannot be paid for working on a holiday until an appropriations act or a continuing resolution is enacted.
Requests for Leave During Furlough
46. Q. If employees request paid leave--i.e., annual, sick, court, military
leave, or leave for bone marrow or organ donation--after receiving a furlough
notice, can the requests be denied for those days that coincide with the dates
of furlough? If an agency has already approved requests for these categories of
paid leave before issuance of the proposed furlough notice, can the approval be
rescinded and the employees furloughed on the days that coincide with the dates
of furlough?
A. The answer to both questions is yes, and this guidance applies whether it is a "shut-down" or "emergency" furlough or a "save money" furlough. However, if it is a "save money" furlough, the agency may choose to furlough the employees at another time if there is no requirement that the employees be furloughed at a given time or in a given order. In addition, the agency may designate whichever days it chooses as furlough days.
In a "shut-down" or "emergency" furlough, all paid leave during a furlough is canceled because the necessity to furlough supersedes leave rights. The Antideficiency Act (31 U.S.C. 1341 et seq.) does not allow authorization of any expenditure or obligation before an appropriation is made, unless authorized by law. Paid leave creates a debt to the Government that is not authorized by the Act. Therefore, agencies are instructed that during a lapse in appropriations, all paid leave during a furlough must be canceled and employees must be either (1) at work performing excepted activities or (2) furloughed.
47. Q. May excepted employees take previously approved paid leave during a furlough caused by a lapse in appropriations--i.e., a "shut-down" or "emergency" furlough? May excepted employees be granted new requests for paid leave during the lapse in appropriations?
A. No. When an employee is not at work and performing the duties determined by the employing agency to be allowable activities in compliance with the Antideficiency Act, he or she cannot be in a paid leave status. Therefore, agencies must take one of the following actions:
(1) cancel any approved paid leave during the furlough and/or deny any new requests for paid leave; or
(2) furlough the employee for the period of the employee's absence from duty. An agency may subsequently terminate the furlough whenever the employee's services are required for excepted activities.
If an excepted employee refuses to report for work after being ordered to do so, he or she will be considered absent without leave (AWOL) and may be charged with insubordination.
48. Q. Typically, all employees are required to report for work on the day on which a "shut-down" or "emergency" furlough begins. How should agencies determine the number of work hours and the number of furlough hours for each nonexcepted employee?
A. OPM recommends that agencies make an effort to determine, on a case-by-case basis, the amount of time each nonexcepted employee works on the day a furlough begins. If an employee is on approved leave on the day the furlough takes effect, both excepted and nonexcepted employees should be charged the appropriate kind of leave for the approximate period of time from the beginning of each individual employee's normal workday until the time other similarly situated employees departed from work after receiving furlough notices. Once the furlough begins, excepted employees are required to be at work. The remaining period of time in a nonexcepted employee's regularly scheduled tour of duty (after taking into account part-time work schedules, uncommon tours of duty, or previously approved flexible or compressed work schedules) would be considered furlough time, even if the nonexcepted employee had previously been scheduled to take paid leave later in the day. An agency may subsequently terminate the furlough if the employee's services are required for excepted activities.
49. Q. If an employee is on leave under the Family and Medical Leave Act of 1993 (FMLA) during the furlough, does the leave count towards the 12-week entitlement to FMLA leave?
A. An employee who is on approved Leave Without Pay (LWOP) under the FMLA on days that coincide with the period of furlough will continue to be charged LWOP. Consistent with law and regulations, the LWOP taken under the FMLA is part of the 12-week entitlement. However, an employee who was scheduled during the furlough to take paid leave under the FMLA (i.e., an employee chooses to substitute annual leave or sick leave, as appropriate, for unpaid leave under the FMLA) must be placed on furlough instead. (See Q. 46) Since the paid leave was canceled, the period of absence may not be used to reduce the 12-week entitlement to FMLA leave.
Leave Without Pay (LWOP) in Lieu of Furlough
50. Q. May agencies permit employees to use Leave Without Pay (LWOP) in
place of furlough?
A. Yes, in certain situations agencies may permit employees to elect to take LWOP instead of being furloughed. However, agencies may not require employees to request LWOP.
If a nonexcepted employee is on approved LWOP during a "save money" furlough, and there is no expectation that the employee will return to duty on the proposed furlough days, it is not necessary to cancel the LWOP, since there is neither work nor funds involved. However, if the employee wishes to cancel all or some of the LWOP and return to duty, the agency may cancel the LWOP and furlough the employee on the days of previously approved LWOP.
51. Q. If an employee is scheduled to take approved Leave Without Pay (LWOP) during a "shut-down" or "emergency" furlough, should the employee continue to be charged LWOP during the period of furlough?
A. Yes. Nonexcepted employees scheduled to take preapproved LWOP during a "shut-down" or "emergency" furlough will continue to be charged LWOP during the furlough period, unless the agency cancels the approved LWOP prior to the beginning of the furlough period. If the approved LWOP was scheduled to end before the furlough ended, the employee must be placed on furlough for the remainder of the furlough period unless later designated as an excepted employee.
52. Q. May an employee voluntarily request Leave Without Pay (LWOP) for a holiday?
A. No. A holiday is considered a day when an employee is excused from regularly scheduled work for leave purposes (5 U.S.C. 6302(a)). Therefore, an employee may not request or be granted LWOP for a holiday.
Continuation of Pay (COP)
53. Q. If employees are receiving Continuation of Pay (COP) due to job-related
injuries, can the COP be terminated or interrupted by furlough?
A. No. According to the Department of Labor, employees are maintained on COP status during periods of furlough.
Injury While on Furlough or LWOP
54. Q. Are employees who are injured while on furlough or Leave Without
Pay (LWOP) eligible to receive workers compensation?
A. No. Workers compensation is paid to employees only if they are injured while performing their duties. Employees on furlough or LWOP are not in a duty status for this purpose. An employee who is receiving workers' compensation payments will continue to receive workers' compensation payments during a furlough and will continue to be charged LWOP.
Unemployment Compensation
55. Q. Are employees entitled to unemployment compensation while on furlough?
A. It is possible that employees may be eligible for unemployment compensation, especially if they are on consecutive furlough days. State unemployment compensation requirements differ. Agencies or employees should submit their questions to the appropriate State office.
Payments Upon Separation from Federal Service
56. Q. If there is a "shut-down" or "emergency" furlough
as a result of a lapse in appropriations, may employees who are separating at
the end of a fiscal year receive a lump-sum payment for their unused annual leave?
Are the funds paid out of the previous fiscal year's monies or the new fiscal
year's monies?
A. The obligation of funds for a lump-sum annual leave payment is triggered by an employee's separation from Federal service. For example, if an employee separates on September 30, 1998, the money to pay the lump-sum annual leave payment is obligated during FY 1998. Although the lump-sum payment would be made in FY 1999, it would be paid from FY 1998 funds.
In the event of a lapse in appropriations, agencies are allowed to employ staff to perform activities necessary for the orderly suspension of nonexcepted activities. This may include the processing of payroll for the pay periods prior to the lapse in appropriations. A minimum number of payroll staff may be excepted from furlough for the minimum time required to issue checks, including checks for lump-sum annual leave payments paid from funds obligated before the lapse in appropriations.
If an employee separates during a lapse in appropriations, the lump-sum annual leave payment must be delayed until enactment of an appropriation that would allow the obligation and payment of funds for this purpose.
57. Q. How are separated employees' entitlements to severance pay affected by a lapse in appropriations?
A. Funds for severance pay are obligated on a day-to-day basis as the recipient accrues continuing entitlement to severance pay by not being reemployed by the Government of the United States. (Severance pay is suspended or terminated when the individual is reemployed by the Federal Government.) Severance pay is paid at the same pay period intervals as if the recipient were still employed. Any severance payment (on a payroll payday) is linked to the corresponding pay period during which the recipient accrued continuing entitlement to severance pay. If the recipient is reemployed by the Federal Government during a pay period, he or she is entitled to a prorated severance payment covering the days in the period prior to reemployment (e.g., 2/5 of one week's pay if the recipient was reemployed on the third workday of the pay period).
Thus, in the case of a lapse in appropriations, accrued but unpaid severance pay represents an obligation to be paid from funds available before the lapse in appropriations occurred. Just as payroll checks for work performed prior to a lapse in appropriations can be processed as part of the orderly suspension of non-excepted activities, severance pay checks covering days before the lapse may also be processed.
After a lapse in appropriations begins, a separated employee continues to accrue entitlement to severance pay on a day-to-day basis. However, no funds may be authorized for severance payments for days during the lapse until an appropriation is enacted. Once an appropriation is in place, the employee will receive the severance pay he would have received had the lapse not occurred. (Note: A lapse will not affect severance payments if an appropriation is enacted before the pay date for any severance payment covering the pay period in which the lapse occurred.)
Performance Awards and Within-grade Increases
58. Q. If agency performance management plans require the payment of performance awards to employees, can the payment be delayed until after the furlough?A. Yes. Neither law nor regulation requires agencies to pay performance awards (5 U.S.C. Chapters 43 and 45 and 5 CFR 451.104(a)(3)). If agency performance management plans require the payment of performance awards, agencies may delay payment until after the furlough when funds are available.
59. Q. Are agencies required to pay performance awards to Senior Executive Service (SES) employees?
A. No. Neither law (5 U.S.C. 5384) nor regulation (5 CFR 534.403) requires agencies to pay performance awards. Under the law and regulation, total performance award payments in an agency during a fiscal year may not exceed 3 percent of the aggregate career SES payroll as of the end of the previous fiscal year (with an alternative formula for small agencies). There is no requirement, however, that any or all of this amount be paid out.
60. Q. May agencies deny or delay within-grade or step increases for white-collar and blue-collar employees?
A. Within-grade and step increases for white-collar and blue-collar employees are awarded on the basis of length of service and individual performance. Such increases may not be denied or delayed solely because of lack of funds. However, extended periods of nonpay status (e.g., because of a furlough for lack of funds) may affect the timing of such increases. For example, a General Schedule employee in steps 1, 2, or 3 of the grade who is furloughed for more than 2 workweeks during the waiting period would have his or her within-grade increase delayed by at least a full pay period. (See 5 CFR 531.406 (b)).
Documentation of Furlough
61. Q. How is time on furlough and leave without pay documented?
A. An SF-50, "Notification of Personnel Action," must be prepared for each individual subject to furlough (or a list form of notification for a group of employees who are to be furloughed on the same day or days each pay period). A return-to-duty SF-50 is necessary only for return from a consecutive furlough, not for a return from a discontinuous furlough. (See Chapters 15 and 16 of The Guide to Processing Personnel Actions.)
If the specific furlough dates are known when a 471/Furlough action is prepared, these dates must be shown in the remarks section of the 471/Furlough action document (SF-50, or list form). If specific dates are not known, then agencies must prepare an 002/Correction action (SF-50) to the 471/Furlough action (or a list form of notification for a group of employees similarly situated) with remarks documenting the total number of days or hours of the furlough when those dates become known.
When the total number of days for a 472/Furlough NTE is increased, a 772/Ext of Furlough NTE (date) must be prepared. For new calendar periods of furlough, a new furlough action must be prepared. For all other changes in the dates on which a furlough will occur, an 002/Correction action must be prepared.
Agencies are reminded that for members and former members of the uniformed services who are subject to the "pay cap" reporting procedures, a copy of the furlough notice, and of the return to duty notice when one is issued, must be sent to the appropriate uniformed service finance center (addresses of the centers are in Chapter 8 of The Guide to Processing Personnel Actions), since days in nonpay status will affect the person's retirement pay. When an SF-50 or a list form of the notice is issued to document a furlough, the copy of the notice which is sent to the pay center must have the employee's SSN and DOB and dates of furlough added to it to ensure proper adjustment of his/her retirement pay.
Labor Management Relations
Implications
The following section provides general information about agency bargaining obligations
during a time of reduced budgets. Officials responsible for preparing for furloughs,
reductions in force, hiring and promotion freezes, or the like, should work closely with
the agency's labor relations staff.
Agencies should work with their partnership councils in planning and implementing changes
required by reduced budgets. Many of the actions agencies may find necessary are protected
by the management rights section of the Federal Labor Relations Statute. However, this
should not prevent agencies and unions from working together to meet the challenge of
budget cuts with the least possible disruption. Employees and their representatives have
an important stake in this area and their suggestions can be valuable.
62. Q. What is an agency's obligation to bargain when it becomes necessary to furlough employees?
A. The decision to furlough employees is a management right protected from collective bargaining by 5 U.S.C. 7106 (a)(2)(A). However, the agency must bargain over the impact and implementation of its decision and over appropriate arrangements for employees adversely affected by the furlough, unless the matter of furloughs is already "covered by" the agreement. See, in this connection, 47 FLRA Nos. 96, 99 and 114, and other cases in which the Authority has applied its "covered by" doctrine to determine whether the agreement provisions relieve the agency of any duty to bargain on impact and implementation on this matter. If in doubt, prudence dictates that the agency give adequate notice and bargain on impact and implementation rather than run the risk of being ordered to pay back pay to furloughed employees as a remedy for committing a refusal-to-bargain unfair labor practice.
63. Q. Does an agency have to bargain over its decision as to which activities would be excepted from a furlough under the Office of Management and Budget's (OMB) guidelines?
A. No. Although agencies are encouraged to discuss this issue with unions in partnership, such a decision is nonnegotiable because it relates to the determination of the agency's mission and/or because it relates to the assignment of work. Both of those areas are reserved to management by 5 U.S.C. 7106(a). However, an agency would have to bargain, if requested to do so, by the exclusive representative (union), over the impact and implementation of management's decision. See, e.g., Social Security Administration, 22 FLRA 868.
64. Q. Can an agency effect a "save money" furlough for employees in a bargaining unit before negotiations are completed?
A. If the parties bargain to impasse and the union does not invoke the services of the Federal Service Impasses Panel in a timely manner, the agency can furlough employees without further delay provided the agency gives the union adequate notice of its intent to implement its last bargaining offer on a specific date. If the union invokes the services of the Federal Service Impasses Panel by that date, the agency may not furlough employees unless it can show it is necessary to do so without further delay. Agencies required to absorb substantial budget cuts during a short term continuing resolution might be required to furlough without delay because the cuts must be absorbed during the term of the continuing resolution and cannot be deferred until later in the year. However, in the case of cuts that can be absorbed over the course of the fiscal year, it would be difficult to demonstrate that the furloughs could not be delayed pending resolution of the bargaining impasse. If bargaining is not completed and the agency must furlough employees, the agency should continue to bargain and, if possible, implement any agreement retroactively.
65. Q. In the event of a lapse of appropriations necessitating a "shutdown" furlough, what is an agency's obligation to bargain?
A. Although the circumstances are more urgent than those described in question 64, agencies still have a duty to notify the union and bargain upon request on whatever negotiable impact and implementation proposals the union may submit. Because the agency must act by a date certain, whatever bargaining that takes place must be accomplished in the little time available before action is necessary. If agreement isn't reached in the time allowed, the agency should tell the union what actions it will take. Although the union may try to invoke the services of the Federal Services Impasses Panel (FSIP), it is unlikely that, in the circumstances posed by this question, the Panel will have time to get involved. But whether or not the FSIP gets involved, the agency can justify its actions--as the Federal Labor Relations Authority (FLRA) put it in Treasury, 18 FLRA No. 61--where "consistent with the necessary functioning of the agency."
Some of the urgency could be reduced if the agency, as it approaches the lapse of its appropriation, were to notify the union of the actions it plans to take were certain scenarios to take place and ask the union for its views and suggestions. That is, nothing prevents the parties from bargaining in advance of a looming crisis so as to eliminate any need for bargaining when the crisis actually occurs. FLRA has frequently held that there is no need to engage in I&I bargaining on matters already "covered by" the agreement. See the cases mentioned in the answer to question 62.
66. Q. What steps should an agency take to meet its obligation to bargain?
A. Under the labor-management statute, the agency must give the union "adequate" notice of its intent to furlough employees who are represented by the union. "Adequate" is not defined and the Federal Labor Relations Authority determines what is adequate notice based on the nature of the action taken by the agency and amount of time it judges adequate to bargain. These statutory notice requirements may have been augmented or modified by any negotiated agreements.
67. Q. What are the implications if an agency furloughs employees before it gives the union timely notice and meets its bargaining obligations?
A. It is an unfair labor practice to refuse to negotiate in good faith. If the Federal Labor Relations Authority finds that the agency engaged in an unfair labor practice it may order the agency to renegotiate an agreement with retroactive effect and may require reinstatement of affected employees with back pay.
68. Q. May the agency issue its notice of proposed furlough before it has completed bargaining?
A. Probably not (unless one can make a 7106(a)(2)(D) case that the action was "necessary to carry out the agency mission during emergencies"). See, in this connection, Scott AFB, 44 FLRA No. 92, where the Authority found that the agency committed a ULP when it directed the activity to issue notices of proposed furlough without providing the union with adequate notice and an opportunity to bargain over impact and implementation. In the process, the Federal Labor Relations Authority (FLRA) rejected the ALJ's conclusion that the issuance of proposed furlough to unit employees without notice to the union and bargaining was not a ULP because the notices did not effect a change in conditions of employment. Regarding the latter, FLRA said the following:
[T]he issuance of the notices of proposed furlough constitutes a step necessary to furlough employees and, in fact, places employees in a status in which they can be furloughed. In this regard, the notices of proposed furlough issued to employees in this case are similar to the RIF notices issued to employees in Scott AFB, [33 FLRA No. 92]. Both notices changed affected employees' conditions of employment by placing the employees in a status in which they "became subject to actions to which they had not been subject prior to the issuance of the notices." [44 FLRA at 125.]
69. Q. If an existing negotiated agreement requires the agency to give a longer notice period than that required by law before employees are furloughed, either through adverse action or reduction in force procedures, must the agency delay the furlough until the negotiated period has expired?
A. Generally, an agency would be required to wait. However, if it would be impossible to meet statutory budget limits by waiting, the agency should furlough when statutory requirements are met. An agreement provision that is not one of the 7106 (b) exceptions to management's 7106(a) rights cannot prevent the exercise of a management right such as the right to lay off employees. In most cases, a delay in the exercise of a management right is not viewed by the Authority as preventing the agency from "acting at all." Moreover, management has the right to "take whatever actions may be necessary to carry out the agency mission during emergencies."
70. Q. What is the effect of outside directives on the obligation to bargain or to continue to abide by existing agreement provisions?
A. This depends on the nature of the outside directive. Any agreement must conform to existing law and any laws enacted during the life of the agreement.
With respect to other kinds of directives, it is an unfair labor practice for an agency "to enforce any rule or regulation. . . . which is in conflict with any collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed." However, because agreements must conform to Governmentwide regulations, a directive from OMB, or any agency, that is binding on other agencies would limit bargaining over new agreement provisions.
Furlough Under Reduction in Force Procedures (General)
71. Q. When is an agency required to use reduction in force (RIF) procedures
to furlough employees?
A. Agencies must follow RIF procedures when furloughing employees for 31 or more continuous calendar days, or for 23 or more discontinuous workdays.
72. Q. Is there a maximum period an employee may be furloughed?
A. Yes. An employee may be placed on a reduction in force furlough only when the agency plans to recall the employee to his or her position within 1 year. Therefore, the furlough may not exceed 1 year.
73. Q. If an agency needs to furlough employees for more than 30 calendar days (or 22 workdays), must the complete reduction in force (RIF) procedures be followed?
A. Yes. The complete RIF procedures must be followed, including a minimum 60 days specific written notice of the RIF furlough action. (Question 86 has additional information on RIF notice requirements.) The only exception to regular RIF procedures involves assignment rights (i.e., "bump" and "retreat" rights).
74. Q. When does an employee who is reached for a reduction in force (RIF) furlough action have a right of assignment to another position?
A. An employee reached for release from the competitive level because of a RIF furlough has assignment rights to other positions on the same basis as an employee reached for release as a result of other RIF actions (e.g., separation or downgrading), including the "Undue Interruption" standard. (As defined in 5 CFR 351.203, "Undue Interruption" essentially means that a higher-standing employee who is otherwise qualified for RIF assignment may exercise the assignment right only if the employee is able to perform the position of the lower-standing employee within 90 days of the RIF.)
In applying the undue interruption standard to a RIF furlough situation, the agency must consider whether undue interruption would result from both (1) the displacement of a lower-standing employee from the competitive level affected by the furlough, and (2) the recall of both employees to their official positions at the end of the furlough period.
Because the undue interruption standard used in determining employees' RIF assignment rights is based on 90 consecutive days, an employee reached for a continuous RIF furlough generally does not have assignment rights to a position held by another employee who is not affected by the furlough unless the furlough extends for 90 or more consecutive days. Also, an employee reached for a discontinuous RIF furlough action does not have assignment rights to another position.
75. Q. Are there any other situations in which agencies may restrict employees' RIF assignment rights in a furlough situation?
A. An agency may make a temporary exception to order of release and assignment rights to keep the incumbent in his or her position for 90 days or less after the commencement of the furlough when needed to continue an activity without undue interruption. (For additional reasons that a temporary exception may be used, see 5 CFR 351.608 (a).)
An agency may make a continuing exception to order of release and assignment rights to keep the incumbent in a position that no higher standing employee can take over within 90 days and without undue interruption to the activity. (See 5 CFR 351.607.)
76. Q. Some employees within a competitive area are paid from appropriated funds. Some are paid from a variety of other funding sources, such as trust funds, working capital, user fees, etc. Are employees who are paid from these other sources exempt from the furlough and the RIF process?
A. Agencies should follow OMB guidance to determine whether positions paid from other sources are subject to furlough. Regardless of the source from which an employee is paid, each employee within a competitive area would be subject to displacement by higher standing employees within the same competitive area.
77. Q. If a program, project, or activity (PPA) takes other actions to obviate or lessen the need for a RIF, how will the employees in the PPA be affected by RIF?
A. Even though their positions are not subject to furlough, the employees in this PPA would be subject to displacement by higher standing employees in other PPAs within the competitive area.
78. Q. What action is taken if an employee refuses an offer of assignment?
A. The employee is furloughed from his or her position.
79. Q. If an employee bumps or retreats to a different job as a result of a furlough, is the employee temporarily assigned to that job?
A. No. The employee becomes the incumbent of that job even though the RIF furlough anticipates the employee's eventual recall to his or her former job.
80. Q. If circumstances change and the agency is unable to recall furloughed employees at the point specified in their reduction in force (RIF) notice, what additional action is required?
A. In this situation, the agency must issue those employees new notices of either an extended furlough or proposed RIF separation, as the situation requires. This new action must meet all the requirements in the RIF regulations (for example, 60 days advance notice).
81. Q. Do these requirements also apply if an agency finds that it can recall employees before they have reached the furlough limits specified in their reduction in force (RIF) notice?
A. No.
82. Q. Are Presidential appointees, Schedule C employees, and members of the Senior Executive Service (SES) covered by the reduction in force (RIF) furlough procedures?
A. An employee whose appointment must be confirmed by, or made with the advice and consent of the Senate, is not covered by the Part 351 RIF procedures. All Schedule C employees are covered by Part 351 except those under appointments of 1 year or less who have less than 1 year of service. Career SES members are covered by separate furlough procedures in 5 CFR Part 359, Subpart H, which provide that an agency must use competitive procedures in selecting SES career appointees for furloughs of more than 30 calendar days, or for more than 22 workdays if the furlough does not cover consecutive calendar days. Agencies may use the same procedures they have established for competition for job retention under an SES RIF situation. Any competitive procedures used must be made known to the SES members. The furlough of an SES noncareer or limited appointee, or a reemployed annuitant holding a career SES appointment, is not subject to 5 CFR 359, Subpart H.
83. Q. What happens to temporary employees serving under appointments limited to 1 year or less in reduction in force (RIF) furlough situations?
A. An agency may not retain a temporary employee in pay status to furlough a competing employee in the same competitive level. Temporary employees may be either separated or furloughed in such situations, but they are not entitled to the protections of adverse actions or RIF procedures when this occurs. As a matter of good human resource management, however, the agency should try to give these employees as much advance written notice as possible.
Time spent in furlough status by temporary employees counts the same as time in a pay status toward their appointment's not-to-exceed date and the 2-year limit on their overall service specified in 5 CFR 316.401(c).
84. Q. How do agencies furlough administrative law judges for more than 30 calendar days (or more than 22 workdays)?
A. Administrative law judges are subject to the RIF procedures in Part 351. However, since judges are not given performance ratings, the Part 351 provisions dealing with the effect of performance ratings on retention standing would not apply.
85. Q. What notice must an agency provide an employee of a reduction in force (RIF) furlough action?
A. An agency must give an employee covered by OPM's retention regulations a minimum 60-day specific written notice before the effective date of any RIF action, including furlough. The statutory basis for the RIF notice requirements is found in 5 U.S.C. 3502(d). The RIF notice requirements are further implemented through regulations published in 5 CFR 351, Subpart H.
An employee of the Department of Defense (DoD) is entitled, under implementing regulations issued by DoD, to a specific written notice of at least 120 days before the effective date of a RIF action, including furlough, when a significant number of employees will also be separated by RIF during the same RIF.
The same notice requirements are applicable to both a continuous and a discontinuous RIF furlough.
86. Q. What option is available if an agency is unable to provide an employee with the minimum required notice of a reduction in force (RIF) furlough?
A. When a RIF is caused by unforeseeable circumstance, an agency may request OPM to authorize a RIF notice period of less than 60 days, or less than the 120-day requirement applicable to a significant RIF in DoD. However, the agency must still provide each employee with a minimum of 30 calendar days specific written notice of the RIF action. (Refer to 5 CFR 351.801(b).)
87. Q. 5 CFR 351.806 states that during the notice period when, "in an emergency the agency lacks work or funds for all or part of the notice period, it may place the employee . . . in a nonpay status without his or her consent." If an agency is unable to give 30 calendar days notice in an emergency (or longer period if required by administrative or negotiated provisions), may an agency use 351.806 to place employees on furlough before the notice period is satisfied?
A. Yes.
88. Q. Is the agency required (or permitted) to register employees furloughed by reduction in force (RIF) in the agency's Reemployment Priority List (RPL), or is the employee eligible for priority consideration under placement programs such as Career Transition Assistance Program (CTAP) or the Interagency Career Transition Assistance Program (ICTAP)?
A. No. All of these programs are open only to employees who are separated, not employees who are furloughed by RIF.
89. Q. Competitive service employees may appeal a reduction in force (RIF) action to the Merit Systems Protection Board. What about excepted service employees?
A. All excepted service employees, as well as competitive employees, who are covered by the RIF regulations may appeal or grieve as follows: An employee covered by a negotiated grievance procedure that does not exclude RIF actions must use the negotiated grievance procedure. Otherwise, an employee may appeal to MSPB. See 5 CFR 351.202 and 351.901.
Office of Management and Budget Issuance
Retyped (without change) by OPM
August 22, 1995
M-95-18
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
FROM: Alice M. Rivlin
Director
SUBJECT: Agency Plans for Operations During Funding Hiatus
OMB Bulletin 80-14, dated August 28, 1980 (and amended by the OMB Director's memorandum of
November 17, 1981) requires all agencies to maintain contingency plans to deal with a
possible appropriations hiatus. The bulletin requires agency plans to be consistent with
the January 16, 1981 opinion of the Attorney General on this subject.
The Office of Legal Counsel of the Department of Justice has issued an opinion dated
August 16, 1995 that updates the 1981 opinion. A copy of the August 16th opinion is
attached. You should review your plans in light of this opinion, make any changes
necessary to conform to the opinion, and otherwise ensure your plan is up to date.
Please send a copy of your updated plan to your OMB program examiner no later than
September 5, 1995. Any questions should be directed to your program examiner.
Attachment
Appendix A-1- Attachment
GOVERNMENT OPERATIONS IN THE EVENT
OF A LAPSE IN APPROPRIATIONS
Section 1341 of the Antideficiency Act permits officers and employees of the
federal government and of the District of Columbia to incur obligations in advance of
appropriations where such obligations are authorized by law, whether expressly or by
necessary implication.
Section 1342 of the Antideficiency Act, as amended, permits officers and employees of
the federal government and of the District of Columbia to accept voluntary services or
employ personal services in excess of those authorized by law only in cases of emergencies
where there is (1) a reasonable and articulable connection between the function to be
performed and the safety of human life or the protection of property, and (2) some
reasonable likelihood that the safety of human life or the protection of property would be
compromised in some significant degree by delay in the performance of the function in
question.
August 16, 1995
MEMORANDUM FOR ALICE RIVLIN
DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
This memorandum responds to your request to the Attorney General for advice regarding
the permissible scope of government operations during a lapse in appropriations.(1)
The Constitution provides that "no money shall be drawn from the treasury, but in
consequence of appropriations made by law." U.S. Const. art. I, 9, cl. 7. The
treasury is further protected through the Antideficiency Act, which among other things
prohibits all officers and employees of the federal government from entering into
obligations in advance of appropriations and prohibits employing federal personnel except
in emergencies, unless otherwise authorized by law. See 31 U.S.C. 1341 et
seq.(2)
In the early 1980s, Attorney General Civiletti issued two opinions with respect to the
implications of the Antideficiency Act. See "Applicability of the
Antideficiency Act Upon A Lapse in an Agency's Appropriations," 4A Op. O.L.C. 16
(1980); "Authority for the Continuance of Government Functions During a Temporary
Lapse in Appropriations," 5 Op. O.L.C. 1 (1981) (1981 Opinion). The 1981 Opinion has
frequently been cited in the ensuing years. Since that opinion was written, the
Antideficiency Act has been amended in one respect, and we analyze the effect of that
amendment below. The amendment amplified on the emergencies exception for employing
federal personnel by providing that "[a]s used in this section, the term 'emergencies
involving the safety of human life or the protection of property' does not include
ongoing, regular functions of government the suspension of which would not imminently
threaten the safety of human life or the protection of property." 31 U.S.C. 1342.
With respect to the effects of this amendment, we continue to adhere to the view expressed
to General Counsel Robert Damus of the Office of Management and Budget that "the 1990
amendment to 31 U.S.C. 1342 does not detract from the Attorney General's earlier
analyses; if anything, the amendment clarified that the Antideficiency Act's exception for
emergencies is narrow and must be applied only when a threat to life or property is
imminent." Letter from Walter Dellinger to Robert G. Damus, October 19, 1993. In
order to ensure that the clarification of the 1990 amendment is not overlooked, we believe
that one aspect of the 1981 Opinion's description of emergency governmental functions
should be modified. Otherwise, the 1981 Opinion continues to be a sound analysis of the
legal authorities respecting government operations when Congress has failed to enact
regular appropriations bills or a continuing resolution to cover a hiatus between regular
appropriations.
I.
Since the issuance of the extensive 1981 Opinion, the prospect of a general
appropriations lapse has arisen frequently. In 1981, 1982, 1983, 1984, 1986, 1987 and
1990, lapses of funding ranging from several hours to three days actually did occur. While
several of these occurred entirely over weekends, others required the implementation of
plans to bring government operations into compliance with the requirements of the
Antideficiency Act. These prior responses to the threat of or actual lapsed appropriations
have been so commonly referred to as cases of "shutting down the government"
that this has become a nearly universal shorthand to describe the effect of a lapse in
appropriations. It will assist in understanding the true extent of the Act's requirements
to realize that this is an entirely inaccurate description. Were the federal government
actually to shut down, air traffic controllers would not staff FAA air control facilities,
with the consequence that the nation's airports would be closed and commercial air travel
and transport would be brought to a standstill. Were the federal government to shut down,
the FBI, DEA, ATF and Customs Service would stop interdicting and investigating criminal
activities of great varieties, including drug smuggling, fraud, machine gun and explosives
sales, and kidnapping. The country's borders would not be patrolled by the border patrol,
with an extraordinary increase in illegal immigration as a predictable result. In the
absence of government supervision, the stock markets, commodities and futures exchanges
would be unable to operate. Meat and poultry would go uninspected by federal meat
inspectors, and therefore could not be marketed. Were the federal government to shut down,
medicare payments for vital operations and medical services would cease. VA hospitals
would abandon patients and close their doors. These are simply a few of the significant
impacts of a federal government shut down. Cumulatively, these actions and the others
required as part of a true shut down of the federal government would impose significant
health and safety risks on millions of Americans, some of which would undoubtedly result
in the loss of human life, and they would immediately result in massive dislocations of
and losses to the private economy, as well as disruptions of many aspects of society in
advance of appropriations or beyond appropriated levels, restrictions that will cause
significant hardship should any lapse in appropriations extend much beyond those we have
historically experienced. To be sure, even the short lapses that have occurred have caused
serious dislocations in the provision of services, generated wasteful expenditures as
agencies have closed down certain operations and then restarted them, and disrupted
federal activities. Nevertheless, for any short-term lapse in appropriations, at least,
the federal government will not be truly "shut down" to the degree just
described, simply because Congress has itself provided that some activities of government
should continue even when annual appropriations have not yet been enacted to fund current
activities.
The most significant provisions of the Antideficiency Act codify three basic restrictions
on the operation of government activities. First, the Act implements the constitutional
requirement that "No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law." U.S. Const. art. I, 9, cl. 7. Second, when no current
appropriations measure has been passed to fund contracts or obligations, it restricts
entering into contracts or incurring obligations (except as to situations authorized by
other law). Third, it restricts employing the services of employees to perform government
functions beyond authorized levels to emergency situations, where the failure to perform
those functions would result in an imminent threat to the safety of human life or the
protection of property.(3) The 1981
Opinion elaborated on the various exceptions in the Antideficiency Act that permit some
continuing government functions, and we will only summarize the major categories here:
- Multi-year appropriations and indefinite appropriations.
Not all government functions are funded with annual appropriations. Some operate under multi-year appropriations and others operate under indefinite appropriations provisions that do not require passage of annual appropriations legislation. Social security is a prominent example of a program that operates under an indefinite appropriation. In such cases, benefit checks continue to be honored by the treasury, because there is no lapse in the relevant appropriation.
- Express authorizations: contracting authority and borrowing authority.
Congress provides express authority for agencies to enter into contracts or to borrow funds to accomplish some of their functions. An example is the "food and forage" authority given to the Department of Defense, which authorizes contracting for necessary clothing, subsistence, forage, supplies, etc. without an appropriation. In such cases, obligating funds or contracting can continue, because the Antideficiency Act does not bar such activities when they are authorized by law. As the 1981 Opinion emphasized, the simple authorization or even direction to perform a certain action that standardly can be found in agencies' enabling or organic legislation sufficient to support a finding of express authorization or necessary implication (the exception addressed next in the text), standing alone. There must be some additional indication of an evident intention to have the activity continue despite an appropriations lapse.
- Necessary implications: authority to obligate that is necessarily implied by statute.
The 1981 Opinion concluded that the Antideficiency Act contemplates that a limited number of government functions funded through annual appropriations must otherwise continue despite a lapse in their appropriations because the lawful continuation of other activities necessarily implies that these functions will continue as well. Examples include the check writing and distributing functions necessary to disburse the social security benefits that operate under indefinite appropriations. Further examples include contracting for the materials essential to the performance of the emergency services that continue under that separate exception. In addition, in a 1980 opinion, Attorney General Civiletti opined that agencies are by necessary implication authorized "to incur those minimal obligations necessary to closing [the] agency." The 1981 opinion reiterated this conclusion and consistent practice since that time has provided for the orderly termination of those functions that may not continue during a period of lapsed appropriations.
- Obligations necessary to the discharge of the President's constitutional duties and
powers.
Efforts should be made to interpret a general statute such as the Antideficiency Act to avoid the significant constitutional questions that would arise were the Act read to critically impair the exercise of constitutional functions assigned to the executive. In this regard, the 1981 Opinion noted that when dealing with functions instrumental in the discharge of the President's constitutional powers, the "President's obligational authority . . . will be further buttressed in connection with any initiative that is consistent with statutes -- and thus with the exercise of legislative power in an area of concurrent authority -- that are more narrowly drawn than the Antideficiency Act and that would otherwise authorize the President to carry out his constitutionally assigned tasks in the manner he contemplates." 1981 Opinion, at 6-7.(4)
- Personal or voluntary services "for emergencies involving the safety of human
life or the protection of property."
The Antideficiency Act prohibits contracting or obligating in advance of appropriations generally, except for circumstances just summarized above. The Act also contains a separate exception applicable to personal or voluntary services that deal with emergencies. 31 U.S.C. 1342. This section was amended in 1990. We will analyze the effects of that amendment in Part II of this memorandum.
Finally, one issue not explicitly addressed by the 1981 Opinion seems to us to have been settled by consistent administrative practice. That issue concerns whether the emergency status of government functions should be determined on the assumption that the private economy will continue operating during a lapse in appropriations, or whether the proper assumption is that the private economy will be interrupted. As an example of the difference this might make, consider that air traffic controllers perform emergency functions if aircraft continue to take off and land, but would not do so if aircraft were grounded. The correct assumption in the context of an anticipated long period of lapsed appropriations, where it might be possible to phase in some alternatives to the government activity in question, and thus over time to suspend the government function without thereby imminently threatening human life or property, is not entirely clear. However, with respect to any short lapse in appropriations, the practice of past administrations has been to assume the continued operation of the private economy, and so air traffic controllers, meat inspectors, and other similarly situated personnel have been considered to be within the emergency exception of 1342.II.
The text of 31 U.S.C. 1342, as amended in 1990, now reads:
An officer or employee of the United States Government or of the District of Columbia
government may not accept voluntary services for either government or employ personal
services exceeding that authorized by law except for emergencies involving the safety of
human life or the protection of property. This section does not apply to a corporation
getting amounts to make loans (except paid in capital amounts) without legal liability of
the United States Government. As used in this section, the term "emergencies
involving the safety of human life or the protection of property" does not include
ongoing, regular functions of government the suspension of which would not imminently
threaten the safety of human life or the protection of property.
31 U.S.C. 1342. Because of the 1342 bar on employing personal services,
officers and employees may employ personal services in excess of other authorizations by
law only in emergency situations.(5) This
section does not by itself authorize paying employees in emergency situations, but it does
authorize entering into obligations to pay for such labor.
The central interpretive task under 1342 is and has always been to construe the scope
of the emergencies exception of that section. When the 1981 Opinion undertook this task,
the predecessor to 1342 did not contain the final sentence of the current statute,
which was added in 1990. Examining that earlier version, the Attorney General concluded
that the general language of the provision and the sparse legislative history of it did
not reveal its precise meaning. However, the opinion was able to glean some additional
understanding of the statute from that legislative history.
The Attorney General noted that as originally enacted in 1884, the provision forbade
unauthorized employment "except in cases of sudden emergency involving the loss of
human life or the destruction of property." 23 Stat. 17. He then observed that in
1950, Congress enacted the modern version of the Antideficiency Act and accepted revised
language for 1342 that originally had been suggested by the Director of the Bureau
of the Budget and the Comptroller General in 1947. In analyzing these different
formulations, the Attorney General stated that
[w]ithout elaboration, these officials proposed that 'cases of sudden emergency' be amended to 'cases of emergency,' 'loss of human life' to 'safety of human life,' and `destruction of property' to 'protection of property. These changes were not qualified or explained by the report accompanying the 1947 recommendation or by any aspect of the legislative history of the general appropriations act for fiscal year 1951, which included the modern [1341]. Act of September 6, 1950, Pub. L. No. 81-759, 1211, 64 Stat. 765. Consequently, we infer from the plain import of the language of their amendments that the drafters intended to broaden the authority for emergency employment.
5 Op. O.L.C. at 9.
The 1981 Opinion also sought guidance from the consistent administrative practice of the Office of Management and Budget in applying identical "emergencies" language found in another provision. That other provision prohibits OMB from apportioning appropriated funds in a manner that would indicate the need for a deficiency or supplemental appropriation, except in cases of "emergencies involving the safety of human life, [or] the protection of property" -- phraseology identical to the pre-1990 version of 1342.(6) Combining these two sources with the statutory text, the Attorney General articulated two rules for identifying functions for which government officers may enter into obligations to pay for personal services in excess of legal authority other than 1342 itself:
First, there must be some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property. Second, there must be some reasonable likelihood that the safety of human life or the protection of property would be compromised, in some degree, by delay in the performance of the function in question.
While we continue to believe that the 1981 articulation is a fair reading of the
Antideficiency Act even after the 1990 amendment, see Letter from Walter
Dellinger to Robert G. Damus, October 19, 1993, we are aware of the possibility the second
of these two rules might be read more expansively than was intended, and thus might be
applied to functions that are not emergencies within the meaning of the statute. To
forestall possible misinterpretations, the second criteria's use of the phrase "in
some degree" should be replaced with the phrase, "in some significant
degree."
The reasons for this change rest on our understanding of the function of the 1990
amendment, which comes from considering the content of the amendment, its structure and
its sparse legislative history. That history consists of a solitary reference in the
conference report to the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508,
104 Stat. 1388:
The conference report also makes conforming changes to title 31 of the United States Code to make clear that . . . ongoing, regular operations of the Government cannot be sustained in the absence of appropriations, except in limited circumstances. These changes guard against what the conferees believe might be an overly broad interpretation of an opinion of the Attorney General issued on January 16, 1981, regarding the authority for the continuance of Government functions during the temporary lapse of appropriations, and affirm that the constitutional power of the purse resides with Congress.
H.R. Rep. No. 964, 101st Cong., 2d Sess. 1170 (1990). While hardly articulating the
intended scope of the exception, the conference report does tend to support what would
otherwise be the most natural reading of the amendment standing alone: because it is
phrased as identifying the functions that should be excluded from the scope of the term
"emergency," it seems intended to limit the coverage of that term, narrowing the
circumstances that might otherwise be taken to constitute an emergency within the meaning
of the statute.
Beyond this, however, we do not believe that the amendment adds any significant new
substantive meaning to the pre-existing portion of 1342, simply because the most
prominent feature of the addition -- its emphasis on there being a threat that is
imminent, or "ready to take place, near at hand," see Webster's Third
New International Dictionary 1130 (1986) -- is an idea that is already present in the term
"emergency" itself, which means "an unforeseen combination of circumstances
or the resulting state that calls for immediate action" to respond to the occurrence
or situation. Id. at 741.(7) The
addition of the concept of "imminent" to the pre-existing concept of
"emergency" is thus largely redundant. This redundancy does, however, serve to
emphasize and reinforce the requirement that there be a threat to human life or property
of such a nature that immediate action is a necessary response to the situation. The
structure of the amendment offers further support for this approach. Congress did not
alter the operative language of the statute; instead, Congress chose to enact an
interpretive provision that simply prohibits overly expansive interpretations of the
"emergency" exception.
Under the formulation of the 1981 Opinion, government functions satisfy 1342 if,
inter alia, the safety of human life or the protection of property would be
"compromised, in some degree." It is conceivable that some would interpret this
phrase to be satisfied even if the threat were de minimis, in the sense that the increased
risk to life or property were insignificant, so long as it were possible to say that
safety of life or protection of property bore a reasonable likelihood of being compromised
at all. This would be too expansive an application of the emergency provision. The brief
delay of routine maintenance on government vehicles ought not to constitute an
"emergency," for example, and yet it is quite possible to conclude that the
failure to maintain vehicles properly may "compromise, to some degree" the
safety of the human life of the occupants or the protection of the vehicles, which are
government property. We believe that the revised articulation clarifies that the
emergencies exception applies only to cases of threat to human life or property where the
threat can be reasonably said to the near at hand and demanding of immediate response.
Appendix A-1 Footnotes
1. We do not in this memorandum address the different set of issues that arise when the limit on the public debt has been reached and Congress has failed to raise the debt ceiling.
2. For the purposes of this inquiry, there are two relevant provisions of the Antideficiency Act. The first provides that "[a]n officer or employee of the United States Government or the District of Columbia government may not . . . involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law." 31 U.S.C. 1341(a)(1)(B). The second provides that "[a]n officer or employee of the United States Government . . . may not accept voluntary services . . . or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property." 31 U.S.C. 1342.
3. These restrictions are enforced by criminal penalties. An officer or employee of the United States who knowingly and willfully violates the restrictions shall be fined not more than $5,000, imprisoned for not more than 2 years, or both. 31 U.S.C. 1350.
4. The Attorneys General and this office have declined to catalog what actions might be undertaken this heading. In 1981, for example, Attorney General Civiletti quoted Attorney General (later Justice) Frank Murphy. "These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action." 5 Op. O.L.C. at 7 n.9 (quoting 39 Op. Att'y Gen. 343, 347-48 (1939)). This power should be called upon cautiously, as the courts have received such executive branch assertions skeptically. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); George v. Ishimaru, 849 F. Supp. 68 (D.D.C.), vacated as moot, No. 94-5111, 1994 WL 517746 (D.C. Cir., Aug. 25, 1994). But see Haig v. Agee. 453 U.S. 280 (1981); In re Neagle, 135 U.S. 1 (1890).
5. The 1981 Opinion concluded that: [d]espite the use of the term 'voluntary service,' the evident concern underlying this provision is not government agencies' acceptance of the benefit of services rendered without compensation. Rather, the original version of [1342] was enacted as part of an urgent deficiency appropriation act in 1884, Act of May 1, 1994, ch. 37, 23 Stat. 15, 17, in order to avoid claims for compensation arising from the unauthorized provision of services to the government by non-employees, and claims for additional compensation asserted by government employees performing extra services after hours. This is, under [ 1342], government officers and employees may not involve government in contract for employment, i.e., for compensated labor, except in emergency situations. 30 Op. Att'y Gen. 129, 131 (1913).
6. 31 U.S.C. 1515 (recodified from 665(e) at the time of the Civiletti opinion). Analyzing past administrative practice under this statute, Attorney General Civiletti found tha