Many federal employees understandably are feeling pressed between a rock and a hard place, either having been suddenly furloughed without pay or being forced to work without pay as a result of the federal government’s lapse in appropriations that occurred due to Congress failing to pass a budget for the government by the October 1 deadline. Whether or not you are furloughed due to the government shutdown, you still retain your rights as a federal employee.
Furloughs of fewer than 30 days are covered under adverse action procedures in 5 CFR Part 752 Subpart D, which require an agency to provide advanced written notice and an opportunity for the employee to respond. The advanced written notice and opportunity to respond are not required for furloughs without pay due to unforeseeable circumstances, such as “emergencies requiring immediate curtailment of activities.” 5 CFR §752.404(d)(2). However, if an Agency’s Labor and Employee Relations (LER) personnel continue to work during a government shutdown, arguably, they did not suffer a curtailment of activities that would negate the employee’s right to advance written notice and an opportunity to respond, which could give rise to an argument on appeal, if the employee is not paid back pay after the government reopens, that the employee was denied due process.
Furloughs of more than 30 calendar days require the application of reduction-in-force (RIF) procedures covered under 5 CFR Part 351. Employing agencies must give each employee slated to be released from their “competitive level” due to a RIF specific written notice – typically at least 60 days in advance – before the effective date of the employee’s release. Employees who receive RIF notices have the right to examine the Agency’s retention records, which show how the employee was selected for release.
Both types of Furloughs are appealable to the Merit Systems Protection Board (MSPB). Historically, Furlough Appeals whereby employees were furloughed as a result of shutdowns caused by a lapse in appropriations have largely been rendered moot by the MSPB due to the furloughed employees receiving back pay covering the time they were furloughed after a funding bill is passed and the government reopens. However, to the extent the current administration may threaten not to pay back pay for furloughed employees, utilizing the MSPB appeal process may become essential for federal employees to pursue claims to back pay for their time in a furlough status.
Currently, the MSPB has ceased operations due to the government shutdown. Pursuant to the MSPB Shutdown_Press_Release_Oct12025, “all filing and processing deadlines will be extended by the number of calendar days MSPB is shut down.” Therefore, while the MSPB is not currently processing appeals due to the shutdown, it will resume processing once the government reopens.
While many federal employees have been furloughed due to the shutdown, some employees have been deemed “excepted,” meaning they perform job functions that are excepted from the furlough, such as emergency functions necessary to the safety of human life or the protection of property. Performing work during a government shutdown that does not qualify as “excepted” would appear to be a violation of the Anti-Deficiency Act (ADA). The Anti-Deficiency Act considers only limited functions to be “excepted” during a funding lapse, which primarily include those functions necessary to the safety of human life or the protection of property. 31 U.S. Code §1342. Excepted work can also be work that is necessary for the functioning of a service that is exempt from the shutdown and therefore funded. An example of this given by the Office of Personnel Management in its “Guidance for Shutdown Furloughs” is the function of “cutting the checks for a benefit program for which funding remains available during the lapse and from which the law requires payments to be made.”
The reason for the cessation of certain operations and services as required by the Anti-Deficiency Act is common sensical: The federal government currently lacks funding, and the law therefore prohibits the government – to the extent possible – from entering new obligations or expending resources on functions it lacks the ability to fund during a lapse in appropriations. 31 U.S. Code §1341(a). Even for employees who have been deemed “excepted,” OPM’s “Guidance for Shutdown Furloughs” explains that an employee may be required to perform excepted work activities during part of a lapse period and furloughed for the rest of the time.
The Anti-Deficiency Act requires the withholding of payment during a lapse in appropriations. See Avalos, et al. v. United States, 54 F.4th 1343 (Fed. Cir. 2022). This is why so many in our federal workforce are currently not being paid. However, the Anti-Deficiency Act also requires the cessation of a broad swath of functions during a lapse in appropriations, that is seemingly not being adhered to by many Agencies who are conducting “business as usual,” despite the shutdown status.
For federal employees who are being ordered to perform work that they have a reasonable belief is not “excepted” work, it is usually best to follow the adage, “Obey now, grieve later.” If a federal government employee does not follow an instruction, direction, or order of a supervisor in his or her chain of command, that employee can be subjected to possible disciplinary action. Charges such as “insubordination,” “failure to follow a direct order,” and “failure to follow instructions” are common charges levied on federal government employees in disciplinary proceedings based on allegations that the employee refused to follow a supervisor’s instruction. Even if the basis for the supervisor’s instruction was completely meritless, an employee can still be subject to discipline for not following the supervisor’s instruction. See AFGE, Local 1367 and Lackland Air Force Base (Fed. Arb. 01/26/2011) (arbitration decision upholding a five-day suspension against an employee who did not follow his supervisor’s instructions due to his belief that the instructions were not in accordance with the collective bargaining agreement or past practices).
Even though employees should not typically refuse to obey instructions, an employee usually can express dissent, in a professional manner, with the instruction and not be subjected to discipline so long as the employee still obeys the instruction.
An exception to the “obey now, grieve later” rule exists with regards to instructions that, if followed, could result in irreparable harm such as imminent physical danger. See Larson v. Dep’t of Army, 91 MSPR 511 (MSPB 2002).
Additionally, if a federal employee refuses to follow an instruction that is later deemed unlawful, and the employee is disciplined for refusing to follow that unlawful instruction, that employee will have options available to them to pursue reversal of the disciplinary action, such as a grievance or MSPB appeal right, depending on the type of employment category the employee falls into and the type of discipline issued. No matter what type of claim the employee is pursuing, reversal of a disciplinary action is never guaranteed for employees who have been aggrieved by unwarranted discipline.
Whether you decide to follow orders you believe to be unlawful or not, you as a federal employee have the right to disclose your reasonable belief that your agency is violating law, rule, or regulation through protected channels, such as contacting your congressperson’s office to report the violation, and/or filing a complaint to your agency’s Inspector General (IG) Office. Many federal employees also have the right to make protected disclosures of wrongdoing, such as a violation of law, rule, or regulation to the Office of Special Counsel (OSC). For employees eligible to file OSC complaints, if you suffer retaliation in the form of personnel action (such as a disciplinary action) as a result of your protected disclosure, you may additionally have the right to file a complaint of a Prohibited Personnel Practice (PPP) with the OSC.
Remember that even during times of uncertainty, you retain your rights as a federal employee. While each individual’s situation will vary, and whether and to what extent to pursue those rights will understandably involve a personal decision, don’t forget that you still have rights!
The foregoing statements and recommendations are generalities that do not constitute legal advice. If you have a specific problem in your federal employment that you would like to discuss in more detail with one of our attorneys, please call our office at 757-460-3477 to schedule a consultation.