Eric White: With more layoff notices going out and no real end in sight for this government shutdown, we thought we would get a quick snapshot on where things stand for current, retired and former federal employees. When it comes to talk on the Hill earlier, I had a chance to discuss all of this with John Hatton, staff vice president for policy and programs at the National Active and Retired Federal Employees Association. So, big news that appeared over the weekend and things continue is that the Office of Management and Budget seems to have come through with their threat of sending out more reduction-in-force notices to federal employees during the government shutdown as a sort of use of a bargaining chip. The first initial reaction from NARFE once you all heard and saw these going out.
John Hatton: Negative reaction. Certainly, it’s punitive to public servants who did not cause this crisis at all. This is a crisis of political leadership, including the president’s failing to reach a consensus in D.C. and that is then having an impact downstream to firing federal employees. Two, it’s a bad-faith action in terms of escalating the conflict regarding this negotiation. Rather than deescalating it and trying to find compromise, we’ve routinely called for good-faith, bipartisan negotiations. We think both sides need to do a give-and-take here to get out of this crisis. We also view it as illegal as a violation of the Anti-Deficiency Act. The presidency has less power, not more during a government shutdown. They don’t have greater authority. They are limited by exceptions for accepting volunteer services. So just carrying out the RIF process, which is complicated, requires new administrative burdens. It requires potentially new financial obligations in terms of severance pay. This would violate that. That’s why there’s a lawsuit challenging these actions. And finally, even under the House Republican continuing resolution that’s supported by the president, these programs would be mandated by Congress. So right now there’s no law in place because there’s a lapse in that appropriations law. But as soon as it is reauthorized or the budget authority is extended, there would be a constitutional obligation to carry out these programs and you can’t do that if you start firing everybody within those programs. So a lot of problems with this action certainly does not help us get out of the shutdown.
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Eric White: Obviously, neither of us is in the White House. But I am curious to pick your brain about what the potential endgame here is. You just laid out the reasons of why these RIFs probably wouldn’t stand up in court? Is OMB maybe taking the strategy of if we issue these during a shutdown, those folks who receive them may say, ‘Hey, this is just too much for me,’ and move on. So even if the RIFs turn out to be deemed illegal, there would still be nobody to come back to said position. Is that a possibility or what else do you think is at play here?
John Hatton: I think the Office of Management and Budget under Russell Vought has been trying to leverage whatever claimed power they may have over the course of this last year. So they’ve been making very aggressive constitutional arguments about what they can do and not do that have been challenged in court and certainly go against existing legal precedent, go against existing understandings of what the executive branch should do versus what Congress should do. This is another example of that. It’s trying to have the executive branch make decisions that typically are in the hands of Congress.
Eric White: Gotcha. All right. And yeah, one of the other decisions that they have laid out is the potential for not providing back pay to furloughed federal employees, something that actually has some historical precedent. I mean, it was only just a few years ago that the furloughed employees of the 2018 shutdown had a court case resolved for them to receive said back pay. So this is always a legal sticky area, regardless of how pro-federal employee, if that’s even a term, the particular administration is in the White House. What can you tell me about what this time around could mean for furloughed feds who may miss out on a whole entire paycheck and not see any sort of restitution?
John Hatton: Well, the law is clear. This is law passed into law in 2019 and signed by President Trump. And it says furloughed employees will receive that back pay. OMB and its memo apparently is arguing that additional language that was added that provision that says, and subject to enactment of appropriations, essentially renders everything before it completely meaningless. And Congress would now need to reauthorize that back pay. Now, prior to the passage of the Government Employee Fair Treatment Act, Congress routinely authorized back pay anyway. What that did was essentially guarantee it in the event of that shutdown and future shutdowns. So the OMB is trying to go back on the entire purpose of that law, the exact writing of that law and saying that Congress now has to go back before that law was passed and actually explicitly authorize it. We don’t think so. That subject to an enactment appropriations language simply means that the funding needs to be available to pay the back pay. Theoretically, if they decided to not reauthorize an entire new program, then maybe that is not a case where that clause would come into effect. But it does not apply to people who are in a situation where when the government reopens, there’s no controversy over whether their job is still going to be there. And in those cases, this law is very, very clear. They get back pay.
Eric White: What are you hearing from folks on the Hill and representatives in Washington, D.C. that are on the political side of things. Mike Johnson has kind of laid out that we could be in for the long haul here. Any sort of light at the end of the tunnel for federal employees right now sitting on their hands?
John Hatton: I think it’s still too early to tell. I don’t think we see the light yet. I’ve just read some reports of some back-channel talks about some deal on the Affordable Care Act premiums. I think that has to be part of it. I think some general bipartisan agreement on the appropriations, at least the path towards that likely needs to be part of it. What comes first, the reopening or a deal on ACA, I think may be relevant. I think Republicans may not want to be in a position of saying they’re negotiating during the shutdown, but I think if you get people on a broom with a genuine desire to end this and negotiate, I think you can come to a deal on a lot of these provisions, even on the Affordable Care Act premiums, there’s a group of Republicans who want to see this fixed too. So even if the leaders in the Republican Party are less supportive of it or have to deal with, there are those in their conservative base about putting this on the floor. I think there’s a deal to be had there. I don’t know what the contours of that are. I’m not certainly in the Affordable Care Act premium space, but I think there’s something that could come together there at some point in time. I think it would make sense for Republicans to get that deal done before the notices go out on November 1st. On the other issues on who decides what the government does, Congress or the executive, these controversies regarding impoundment and rescissions, some of the bills that the Senate has been working on in a bipartisan basis have started to address some of that. How that plays out with negotiations with the White House and House Republicans, still not clear, but I think there’s also a path there. So we will see what happens and how long this needs to go before the dam breaks. But you can see the beginnings of what could look like some type of a deal, but I think that there’s just, no one’s willing to blink just yet.
Eric White: Talking with John Hatton, vice president for policy and programs at the National Active and Retired Federal Employees Association. You had mentioned some of the administrative burdens that are on the back burner now because of the shutdown. And that includes no announcement on a cost-of-living adjustment for Social Security or federal retirement benefits, folks. And that’s obviously something very important to people who are not even currently working. Among that, what does that mean for the main people you represent in Capitol Hill, but also are there any other potential administrative actions regarding federal retirement that are just not happening right now because of the nature of things?
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John Hatton: Yeah, so tomorrow was supposed to be a release date for the consumer price index for September. And because Bureau of Labor Statistics is in shutdown operations, that’s being delayed. We have received an update that they are going to release it next Friday, the 24th. I think at this point, they need that to effectuate those cost-of-living adjustments. So I think that is a limited exception because it’s needed for the purposes of protecting property, you’re getting those checks out. But we see a lot of people took the deferred resignation program. There’s a large number of federal retirements in September, 60,000 or so, according to the OPM director, in terms of what is in the online retirement application system. A lot of those applications are hung up at the agency level and not transmitted yet to OPM. That may delay the interim pay for retirement and then delay the eventual processing of those retirement benefits. So not only is the system going to be overwhelmed with the sheer number of that, even in the best of times when government is open, certainly agency operations being in shutdown are going to create further delays on that as well.
Eric White: And this is all coming at the rollout of ORA, which is kind of a new retirement system for federal employees. Any notifications that you’ve heard from members about the convolution of going through a new process while this is all going on?
John Hatton: So once it got up and running, and we heard a little hiccups in terms of agency staff having logins initially, but it’s basically the same retirement form just in a normal online form. And that allows a little bit more visibility into the process. I think overall, it’s been positive. So people can see now if they look at their online retirement application and the system that it’s at payroll, for example. So they can see what stage it is in the process where that goes once it gets to OPM and having the OPM process improved as well is potentially another story. But I think it’s been a positive development to have this online retirement application. And I think given people at least a sense of, I know what’s going on, I’m not at a complete loss of where it is in the process, which I think leads to more phone calls, more frustration than is even necessary because you just can’t even get a simple answer of what is going on. So I think the initial review is positive, but it’s not going to solve all the issues with the system.
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