- The Washington Times - Monday, December 17, 2018

More than 400,000 essential government employees could be forced to stay on the job throughout a government shutdown — even if they’d already planned to take holiday vacations.

A quirk of federal law says paid leave is considered government spending, and since no unauthorized spending can happen during a funding lapse, no one can take vacation.

The silver lining, though, is that government workers could be eligible for double pay should the shutdown last long enough to make them miss a paycheck, thanks to a federal judge’s ruling earlier this decade.

Those are just some of the factors in what could be one of the weirder government shutdowns in memory.

With as much as 75 percent of the government already paid for through fiscal year 2019, the number of workers affected by the funding deadline looming Friday is relatively small — about 800,000 people.

Of those, 380,000 will be furloughed, while the rest, including almost all of the Homeland Security Department and much of the Justice Department, will be kept on the job, according to the Senate Appropriations Committee — though with vacations canceled.

That goes for people with holiday plans, and those trying to burn up days they would otherwise lose at year’s end.

“The short answer is, employees cannot take leave during a shutdown, whether they’re excepted from the shutdown or not, since paid time off is basically an appropriation and in general no appropriations can be made during the shutdown,” said Tim Kauffman, an official at the American Federation of Government Employees, a major labor union for federal workers.

Where most shutdowns are the spawn of dozens of fathers, this one is all about Mr. Trump, who has demanded Congress find $5 billion in new money to pay for more sections of his border wall plans.

Congressional Republicans say they support that investment, but they’re not eager to bring the government to a halt over it. They’re awaiting a decision from the White House over how far to go in negotiations.

“No Senate Republican wants to see a shutdown,” said Sen. John Thune of South Dakota, who will be the No. 2 Senate Republican in the next Congress.

Democrats, vehemently opposed to Mr. Trump’s wall and sensing the reluctance among Republicans, see another chance to isolate the president — and they say they’re not budging. They’ve even moved the goalposts, cutting what had been a $1.6 billion ante last month down to $1.3 billion last week.

Senate Minority Leader Charles E. Schumer, who was part of a contentious meeting at the White House last week, said Democrats are waiting to hear whether Mr. Trump will accept their low-ball offer.

“The only indication he has given is that he wants a government shutdown,” Mr. Schumer said.

Democrats are in the process of crafting contingency plans in the event that the partial shutdown extends into the next Congress.

“Given the possibility of a prolonged government shutdown, House Democrats have begun preparing full-year spending legislation to pass on Jan. 3 to reopen the government,” an aide said.

The government went through two brief shutdowns earlier this year — one orchestrated by Democrats and the other by a maverick Republican. But neither did any major damage, falling chiefly during a weekend or after-hours.

The last big lapse came in 2013, when the GOP-led House pushed for an Obamacare-related spending standoff that sent the government careening into a 16-day shutdown. That was long enough to cancel one round of paychecks for those who were forced to work anyway.

Though all employees were eventually paid in full, some of them said the delayed paycheck caused severe financial problems with bills.

They went to court and, in 2017, won a major victory against the government, with a judge ruling that they were entitled not only to back pay but also to liquidated damages equal to “the minimum and overtime wages that defendant failed to timely pay.”

Nearly two years after the ruling, government officials are still trying to calculate those payments for the 25,000 employees who were part of the class action.

But the decision sets a standard that could ding the government again, making a shutdown even more costly to taxpayers should it happen again.

“This all adds up to money. This is not wise governance going on here,” said Heidi R. Burakiewicz, the lawyer who won the case for the government employees. “The fact that it’s happening over the holidays is just adding insult to injury.”

Congress did manage to prevent this from becoming a major shutdown by passing five of the 12 annual spending bills in September, covering nearly 75 percent of discretionary spending and ensuring the Defense, Veterans and Energy departments will remain operational, along with Congress.

That leaves nine Cabinet departments and dozens of agencies not lucky enough to have money in the pipeline.

That’s similar to the last Christmas-time shutdown, in 1995, when most of the government was funded, and only some departments lapsed. The Congressional Research Service, in a new report, says about 284,000 workers were furloughed that time.

By contrast, the 2013 shutdown saw 850,000 furloughs, or about 40 percent of the civilian workforce.

The number will be far lower this year, should a shutdown happen.

Ironically, even though the shutdown fight is over Homeland Security money, most of that department will have to remain on the job in case of a shutdown, according to Senate Appropriations Committee Vice Chairman Patrick Leahy. Border Patrol agents, Transportation Security Administration screeners, U.S. Immigration and Customs Enforcement officers and many Coast Guard members are essential employees.

So are 5,000 Forest Service firefighters in the Agriculture Department, 13,700 FBI agents in the Justice Department and 3,600 weather forecasters in the Commerce Department, according to the Appropriations Committee figures.

But most of the Commerce Department — some 41,000 employees — will be kicked out of the office, joined by nearly 17,000 NASA employees, about 16,000 National Park Service employees and 18,300 staffers at the Transportation Department.

The White House budget office ignored repeated requests over the last week for comment on everything from furloughed worker estimates to what plans have been made for a shutdown.

So did the federal Office of Personnel Management, which combined with OMB make up the government’s chief authorities overseeing the handling of a funding lapse.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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