By Sorbis / Shutterstock.com

State Department Defends Unusual Recall of Furloughed Staffers, With Pay

Management, budget and legal teams approved emergency movement of funds.

In an unusual step during an unusual government shutdown, the State Department on Thursday notified thousands of furloughed employees that it had freed up some existing funds so that the idled staff must report back, in most cases, on Jan. 22. In another unusual twist, the staff will be paid for the work they do once they return.

“As a national security agency, it is imperative that the Department of State carries out its mission,” wrote Bill Todd, deputy undersecretary for management, in a memo. “We are best positioned to do so with fully staffed embassies, consulates, and domestic offices. ... All State Department direct-hire employees and State Department locally employed staff are expected to report to work on their first work day in Pay Period 2.” In a few cases of overseas staff that will be Jan. 20 rather than Jan. 22. 

About 23 percent of U.S. direct hire overseas employees and 40 percent of U.S. direct hire domestic employees are furloughed, the department said.

The recalled employees will be paid on time on Feb. 14, the memo said, but “employees, including those who have performed excepted functions, will not be paid for Pay Period 26 and Pay Period 1 (the time period between December 22, 2018, and January 19, 2019) until fiscal 2019 appropriations are enacted.”

As most personnel operations resume, however, the bureaus and posts “are expected to adhere to strict budget constraints with regard to new spending for contracts, travel and other needs,” Todd continued. Those constraints were laid out in shutdown contingency guidance updated on Jan. 11, a document that also discusses plans for the use of “residual balances in multi-year and no-year appropriations, trust funds, other permanent appropriations, fees [and] the Working Capital Fund.”

Todd’s memo added that the “department will review balances and available legal authorities to try to cover future pay periods.”

Asked for clarification on the authority and funding source for such an unusual move—other departments, including the Internal Revenue Service, the Food and Drug Administration and the Agriculture Department, have also recalled furloughed employees this week but not with a promise of pay—a spokesperson referred only to “available balances” using actions “consistent with applicable legal requirements.”

In an email to Government Executive, the official said, “The State Department is best positioned to carry out our mission when we have our entire team on the field. The department’s management, budget, and legal teams have been working on a way to do just that as the president continues working to secure our Southern border and bring reforms that will ensure the safety and security of the American people.”

The search continues for other funding sources during the appropriations lapse, the statement added, and “any future department actions will be taken under Office of Management and Budget guidance, in consultation with Congress.” The White House has also been consulted, it said.

The move came just days after Secretary of State Mike Pompeo told reporters while traveling to the United Arab Emirates that “morale is good.” State’s employees “understand that there are squabbles in Washington, but their mission remains, their duties continue and they’re executing them.”

The recall also came at the same time dozens of U.S. diplomats stationed around the world had gathered in Washington during the shutdown for a two-day forum. (Such conferences have been conducted since 2011.)

A sample furlough notice posted with State’s shutdown plans said that in “the absence of either a current fiscal year appropriation or a continuing resolution for the Department of State, no further financial obligations may be incurred by the department, except for those related to the orderly suspension of the department's operations or performance of excepted activities as defined in the Office of Management and Budget Memorandum for Heads of Executive Departments and Agencies dated November 17, 1981, and subsequent guidance.”

It continued: “Hence employees who are furloughed “(i.e., non-pay, non-duty status)….should monitor public broadcasts and when you hear that a continuing resolution or a current fiscal year appropriation for the department has been approved by Congress and signed by the president, you will be expected to return to work on your next regular work day.”

Asked to comment on the move’s legality, federal employee attorney John Mahoney said, “Everything about this partial federal government shutdown is unusual. Employees at the State Department affected by the deputy undersecretary of State for management’s back-to-work order need to obey that order and timely report back to work as instructed.  If [State] plans to use previously appropriated discretionary funds on hand to pay salaries, then their actions may be permissible.  I don’t think Congress will oppose [the department’s] efforts to get their federal employees back to work.”

Debra D'Agostino, a founding partner of The Federal Practice Group, said, “While executive agencies usually don’t find or have payroll funds sitting unaccounted for, at least the State Department is recognizing the hardship this ongoing furlough has caused to employees. It’s not clear exactly how these funds were located,” she added, but “kudos to the State Department for not requiring its employees to work for free, even if it’s only for a short while.”

Tom Spiggle, founder of a law firm specializing in employee rights, agreed that the maneuver appears legal. “These agencies have broad discretion in many instances, depending on their funding sources,” he said. The plan could “also limit the liability of the department for violations of the Fair Labor Standards Act, and is probably a good thing for departments to do.”

Queries to congressional foreign relations committees and retired diplomats groups went unanswered as of early Thursday evening.

Sign up for GovExec newsletters and alerts and download our app to stay informed.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.