Why Essential Federal Workers Must Report Without Knowing When They’ll Be Paid

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This isn’t a bureaucratic oversight. It’s the intended operation of a 142-year old law called the Antideficiency Act, which prohibits federal agencies from spending money Congress hasn’t approved for them to spend—even on employee salaries.

The legal architecture here creates something remarkable: a system where the federal government can compel labor it’s prohibited from compensating. Private employers who tried this would face immediate legal action under the Fair Labor Standards Act. But the federal government operates under different rules—rules it wrote for itself.

How the Antideficiency Act Became a Modern Problem

For most of American history, this caused minimal disruption. Congress generally passed funding bills on time. When it didn’t, shutdowns lasted hours or a single day while legislators worked out final details.

But starting in the 1980s, the political dynamics changed. Shutdowns became longer, more frequent, and increasingly used as negotiating leverage. The October-November 2025 shutdown lasted 43 days—the longest in modern American history.

The Antideficiency Act wasn’t designed for this. Its core prohibition is straightforward: federal workers cannot “spend or commit to spending more money than they have available.” When Congress doesn’t approve funding, agencies can’t spend money on anything—including salaries.

Designating “Critical” Workers

When the Office of Management and Budget directs agencies to execute shutdown procedures, as occurred late Friday, January 30, each agency must decide which workers are excluded from being sent home without pay. The designation process follows federal government personnel rules, but requires interpretation by agency legal counsel and senior managers.

Employees designated as critical and required to work include those “performing emergency work involving the safety of human life or the protection of property” and those performing work needed to carry out work that Congress already paid for. In practice, these definitions require thousands of individual judgment calls.

IRS staff processing tax returns illustrate the ambiguity. Thousands of tax processors are designated critical during the current shutdown. The government’s reasoning: tax processing prevents backlogs that would disrupt a funded government function (tax collection continues regardless of budget bills).

The designation isn’t always transparent to workers themselves. One federal worker described the process as arbitrary, with some administrative positions designated critical while genuinely important functions were sent home. Agency legal counsel makes the final call, and workers receive written notice of their status—but often with little explanation of the reasoning.

Workers sent home are prohibited from working. The Antideficiency Act violation applies to both the agency and the worker. A worker sent home who volunteers to work anyway is technically violating federal spending law. But critical workers must work, also unpaid. The law creates two categories of people who aren’t getting paid—one group prohibited from working, the other compelled to work.

The Constitutional Problem

Critical federal workers must choose between reporting to work without pay or facing discipline up to termination, according to legal scholars who’ve raised Thirteenth Amendment arguments.

If a federal worker refuses to report when designated critical, the government can characterize that refusal as a strike—a federal crime. The 1981 PATCO strike, when air traffic controllers walked out, resulted in mass terminations and criminal prosecutions. The government’s legal theory: participating in collective action to coerce labor concessions constitutes a strike subject to criminal penalties.

The U.S. Court of Appeals for the Federal Circuit reached a similar conclusion in 2022, rejecting claims that critical workers deserved bonus pay under the Fair Labor Standards Act for work performed during shutdowns. The court acknowledged that the Antideficiency Act and Fair Labor Standards Act appeared “seemingly contradictory,” but gave priority to the Antideficiency Act as the more specific statute.

Federal employee unions continue invoking Thirteenth Amendment language. Legal scholars argue the practice deserves stricter legal review. But no court has stopped the practice. Critical federal workers continue working without pay because the legal system has decided this arrangement is preferable to judicial intervention in congressional budget disputes.

Back Pay: Promise and Limits

The government’s justification for requiring unpaid work rests on a statutory promise: Congress will provide back pay once budget bills resume. This promise became mandatory in 2019 with passage of the Government Employee Fair Treatment Act.

Before that law, back pay required separate congressional legislation after each shutdown. Federal workers had no legal guarantee, only political likelihood that payment would arrive.

The statute’s mandatory language masks an underlying ambiguity. It conditions back pay on Congress passing new budget bills to end the shutdown. What if Congress never passes new budget bills? The statute doesn’t explicitly address this scenario, though it seems unlikely Congress would allow a permanent lapse.

Some Trump administration officials have suggested back pay could be made discretionary rather than mandatory under certain interpretations. Such a move would face immediate legal challenge, but the fact that it’s even discussed reveals how tenuous the back-pay guarantee remains.

When the system works as designed, back pay transforms the no-pay requirement into a forced, interest-free loan from federal workers to the government. Workers must survive without income—paying mortgages, utilities, childcare, medical bills—with only a government promise that payment will eventually arrive. The average federal worker paycheck is approximately $4,700 biweekly. Over 43 days, nearly 3 million paychecks were withheld, representing approximately $14 billion in missing wages.

Financial Impact on Federal Workers

USAA—the military credit union serving 14 million members—issued more than $365 million in special zero-interest loans to over 119,000 federal employees during the October-November 2025 shutdown. Navy Federal Credit Union reported “significantly higher” enrollment in its Paycheck Assistance Program compared to the 2018-2019 shutdown, when it had issued $53 million in loans. Redwood Credit Union issued roughly $160,000 in zero-interest loans to 60 recipients.

These loans exist because federal workers lack sufficient savings to survive even a single missed paycheck. One federal worker whose husband works for the Department of Defense described their situation to CBS News. The family had already incurred significant medical debt from their child’s spinal fusion surgery earlier in the year. When paychecks stopped and medical bills kept arriving, they took a $3,200 emergency loan from USAA to cover mortgage, utilities, and basic bills.

Federal prison correctional officers, earning roughly $40,000 annually in many parts of the country, found themselves unable to cover basic expenses. One officer noted that staff were “living paycheck to paycheck,” and the shutdown meant they couldn’t pay mortgages, car payments, or buy groceries. Some workers faced a choice between paying bills and buying gas to drive to work—to jobs that weren’t paying them.

Workers who received unemployment benefits face another problem. Federal workers can apply for unemployment benefits during shutdowns, typically receiving about one-third to one-half of their regular salary up to a state maximum. But under the 2019 back-pay statute, workers who received unemployment benefits must repay those benefits once they receive retroactive pay. They must return money that helped them survive.

Critical staff who worked without pay were initially ineligible for unemployment benefits at all, since they were technically employed and working. Union advocacy led to proposed legislation extending unemployment eligibility to critical workers, but the fundamental problem remains: workers performing labor receive no compensation until Congress acts.

Federal workers spend their salaries locally, supporting small businesses and local economies. When federal workers stop spending, local restaurants, childcare providers, and retail establishments lose revenue. The Congressional Budget Office estimated the 2018-2019 shutdown cost the U.S. economy $11 billion in reduced economic output.

Workforce Turnover and Retention

Research examining employee turnover after the 2018-2019 shutdown found that it significantly increased employees quitting their jobs—particularly among newer staff and those in lower-level positions. Federal worker separations increased by 19 percent in affected agencies compared to unaffected agencies, with voluntary quits rising by 17 percent over baseline. Critical staff—those required to work without pay—were particularly likely to leave federal service following the shutdown.

This turnover compounds existing federal workforce challenges. The federal government already faces recruitment and retention difficulties. The Bureau of Prisons operates with more than 9,500 unfilled correctional officer positions, creating dangerous conditions and high stress for existing staff. A shutdown that increases turnover makes these problems worse.

Federal Correctional Institution Edgefield in South Carolina was operating with nearly 30 vacancies among 120 authorized correctional officer positions during the October-November 2025 shutdown. Nurses, electricians, social workers, and teachers were pulled from their assigned duties to cover correctional officer shifts, working unpaid, with no end date in sight. The union representing federal corrections staff warned of “disaster upon disaster,” with low morale and extreme stress increasing the likelihood of staff resignations that would further degrade already-inadequate staffing.

Federal contractors face an even worse situation. While federal workers are guaranteed back pay under the 2019 statute, federal contractors have no such guarantee. When Congress fails to approve funding, contractors can’t bill the government for labor performed without an appropriation.

The National Institutes of Health provides a concrete example. Many NIH functions are performed through grants to university researchers and clinical institutions. When funding lapses, NIH can’t issue new grants, can’t make payments on existing grants, and can’t process ongoing grant administration. University medical centers and research institutions that depend on NIH funding must decide whether to continue paying research staff and supporting graduate students without access to federal reimbursement. Research programs stop. Experiments are paused. And there’s no guarantee the government will compensate contractors for work and expenses incurred.

Current Status and Next Steps

As of late Friday evening, January 30, 2026, the Senate had passed funding legislation that would resolve most of the current partial shutdown, but the House had not yet acted. The Senate voted 71 to 29 to approve a package funding five major budget bills through September 2026, while providing temporary funding to keep DHS operating for two weeks.

The dispute centers on DHS funding, specifically over immigration enforcement practices. Following the death of Alex Pretti, an ICU nurse shot by Border Patrol agents in Minneapolis on January 24, 2026, Senate Democrats demanded changes to DHS budget bills including restrictions on ICE operations. These restrictions would require ICE agents to wear activated body cameras, prohibit agents from wearing masks, require judicial warrants for home entries, and restrict patrols without a specific location or warrant.

Senate Minority Leader Chuck Schumer outlined these demands after the Senate vote Friday evening: “If our colleagues are not willing to enact real change, real strong change, they should not expect Democratic votes.” Senate Majority Leader John Thune expressed skepticism about reaching bipartisan agreement during the two-week window: “It’s going to be hard to get anything done.”

If House passage arrives quickly Monday, affected workers might receive paychecks by mid-February with minimal delay. If negotiations stall, another shutdown is virtually certain when the DHS temporary funding expires February 14.

Federal employee unions are mobilizing to pressure Congress for rapid passage and prevent another shutdown. The American Federation of Government Employees and National Treasury Employees Union have both called for swift action and warned that federal workers can’t sustain another shutdown without severe consequences.

Individual federal workers face the immediate reality of work without pay beginning Saturday. The arrangement exists because courts have declined to intervene, Congress has failed to prevent shutdowns through timely budget bills, and the political system has decided that requiring unpaid work from critical federal workers is preferable to either paying them in violation of the Antideficiency Act or allowing important government functions to cease.