Which Federal Employees Work Without Pay During a Shutdown—And Why

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This isn’t a glitch in the payroll system. It’s the intended outcome of how the United States government interprets its own laws during a shutdown.

The workers affected include TSA agents screening passengers at airports nationwide, Coast Guard personnel conducting search-and-rescue operations, and tens of thousands of border patrol agents, customs officers, and immigration enforcement personnel. A large portion of DHS’s workforce falls into a category the government calls “excepted,” meaning required to keep working during a shutdown without pay until Congress gets its act together.

The legal framework that compels this unpaid work creates a situation where the federal government—which prosecutes private employers for wage theft—forces its own employees into what some legal scholars argue constitutes being forced to work against their will. The employees can’t strike. They can’t refuse to show up. And if they quit, they forfeit pension and retirement benefits they’ve built up over years.

The Antideficiency Act

The Antideficiency Act is an obscure law that most people have never heard of. In practice, it’s the mechanism that determines whether a quarter-million federal employees can pay their rent this month.

This law prohibits federal agencies from spending money Congress hasn’t explicitly approved. The penalties are serious, including fines, imprisonment, and immediate termination from federal service.

For most of the law’s history, agencies interpreted this prohibition loosely when Congress failed to pass a budget. They assumed Congress implicitly authorized them to keep operating until new money was approved.

An Attorney General opinion reversed decades of practice, establishing that the law meant what it said: no money approved by Congress, no spending, period. Agencies that continued paying employees during a shutdown were breaking federal law.

But this interpretation created an immediate problem. Some government functions can’t simply stop. The Coast Guard can’t abandon search-and-rescue operations because Congress missed a budget deadline. TSA can’t shut down airport screening. Border Patrol can’t cease operations. The solution was to identify workers required to keep working during a shutdown without violating the law, with the understanding they’d be paid retroactively once money was approved.

The government transformed a legal impossibility into a legal obligation. Can’t pay employees, but can’t shut down critical functions? Require the employees to work for free.

Three Categories of Federal Workers During a Shutdown

Federal employees fall into three groups when the government runs out of approved money.

Furloughed workers are prohibited from working. They stay home, receive no pay during the shutdown, and wait for Congress to act. Excepted employees must report to work but receive no pay until the shutdown ends. Exempt employees continue working and getting paid on schedule because their funding comes from sources outside the annual budget process—money set aside in advance, not money Congress approves each year, fees from users, or money approved for multiple years.

The determination of which category you fall into has almost nothing to do with how important your job is. It’s a technical question about budget authority and how the law is understood.

The Office of Personnel Management provides guidance identifying work that can continue: activities needed to protect human life or property, activities needed for the president to carry out constitutional responsibilities, and activities permitted under exceptions written into law. Law enforcement generally qualifies. National defense functions qualify. Emergency response qualifies. Processing Social Security benefits qualifies because Social Security runs on trust fund money, not money Congress approves each year. Everything else—human resources, procurement, recruitment, most administrative functions—gets furloughed.

But agencies have substantial discretion in applying these categories. DHS designated a very high percentage of its workforce as excepted during the current shutdown. Other agencies designate varying percentages of staff as excepted. The Environmental Protection Agency typically designates only 8 to 12 percent as excepted—mostly emergency environmental response personnel.

A TSA officer screening bags at LaGuardia is excepted. The HR specialist who would process that officer’s promotion paperwork is furloughed. Both are federal employees. Only one is working without pay.

What “Working Without Pay” Means in Practice

Federal paychecks arrive on biweekly schedules tied to pay period cycles. When DHS funding lapsed on February 15, the immediate impact varied depending on where employees fell in their pay cycles. Many federal workers received reduced paychecks shortly after the shutdown began, with subsequent paychecks being completely zero dollars.

Week one: Most excepted employees can manage through existing account balances or credit cards. Mortgage payments process automatically. Rent comes due. Credit card minimums continue. The financial buffer most households maintain—typically seven to ten days of expenses—starts depleting immediately.

Week two: The buffer runs out. Federal workers aren’t wealthy people with substantial savings. They’re middle-class families living in expensive metropolitan areas where federal jobs are concentrated. TSA officers face the same housing costs as private sector employees earning substantially more. Decisions that were previously unthinkable become needed: skip a prescription refill to preserve cash? Reduce grocery purchases? Withdraw kids from childcare? Apply for emergency loans?

During the 2025 shutdown, Navy Federal Credit Union reported that more than 350,000 members enrolled for no-interest loan assistance—eighteen times the rate during the 2018-2019 shutdown.

Week three and beyond: Late fees accumulate on credit cards. Mortgage companies assess penalties. Some utilities issue shut-off notices. Childcare providers stop accepting children whose parents are in arrears. Medical debt begins mounting as families defer healthcare they can’t pay for out of pocket.

Geographic Concentration of Economic Impact

Shutdown impacts don’t distribute evenly across the country. They concentrate in specific communities where federal employment represents a substantial portion of the local economy.

The Washington, D.C. metropolitan area employs a substantial portion of the federal civilian workforce. Border communities—McAllen, Texas; San Diego, California; El Paso, Texas—have high concentrations of Border Patrol and Customs and Border Protection employment. Coast Guard personnel concentrate in coastal bases: Portsmouth, New Hampshire; San Francisco, California; Mobile, Alabama. When these people stop receiving paychecks, the local coffee shop near the federal building loses revenue. The childcare center serving federal families experiences payment delays. The restaurant frequented by federal employees sees a sharp decline in business.

The Congressional Budget Office estimated the 2025 shutdown reduced GDP by $18 billion in the fourth quarter alone, concentrated in regions with high federal employment density.

State and local governments budget revenue based on payroll tax collections and sales tax from federal employee spending. When federal paychecks cease, these revenue sources shrink immediately. Head Start programs were forced to close, affecting children whose parents suddenly lost access to childcare and early education. For working parents, Head Start closures created impossible choices. Some lost work productivity or missed work entirely to provide childcare. Others withdrew from employment.

What Excepted Workers Can and Cannot Do

An excepted federal employee working without pay operates under profound restrictions.

You must report to work. The traditional understanding held that failure to report could result in termination for being absent without leave. But this legal principle confronted practical reality during the 2025 shutdown when many excepted employees became unable to physically get to work. Some experienced genuine medical emergencies or family crises. Others, living paycheck-to-paycheck without financial resources for gas or transportation costs, became unable to physically reach their workplaces.

Legislation eventually clarified that excepted workers could choose between taking leave or entering temporary furlough status for approved absences. This meant an excepted employee needing a medical appointment could charge the time against accumulated sick leave or accept temporary furlough rather than facing AWOL discipline.

But you cannot unilaterally use leave to avoid work. Doing so would create a pay obligation in violation of the law. Agencies must specifically approve leave requests and generally discourage leave usage during shutdowns. Previously approved time off sometimes gets cancelled entirely. In December 2018, the White House and OPM cancelled all previously approved time off before Christmas, even as agencies struggled to determine how many people genuinely needed to be recalled from planned leave.

You cannot strike. Federal employee strikes are prohibited by statute and constitute a federal crime. This prohibition creates asymmetrical bargaining power—the government can compel work without pay, and employees have no legal mechanism to refuse collectively.

You can resign, technically. But the decision carries catastrophic consequences. A federal employee who resigns forfeits accumulated leave balances (sometimes worth $20,000 to $50,000 or more), pension contributions, health insurance coverage through the Federal Employees Health Benefits Program, and all other employment benefits. For a career federal employee with fifteen or twenty years of service, resignation means permanently forfeiting substantial pension rights.

Back Pay: Guaranteed But Delayed

Excepted employees will eventually be paid. The Government Employee Fair Treatment Act of 2019 established that all federal workers affected by when the government runs out of approved money are automatically entitled to pay, with payment required “on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”

This represents a significant improvement over the prior practice of requiring specific congressional action after each shutdown to authorize back pay. Before 2019, excepted employees sometimes faced months or even years waiting for Congress to act.

But the gap between statutory entitlement and actual payment can still be substantial. Agencies must process massive quantities of retroactive payroll during the payroll restart process. In practice, retroactive pay typically posts on the first regularly scheduled pay date after money is approved—usually five to seven days after the government reopens.

Various complications can delay this timeline. Some new employees might not get back pay because they’re still in their trial period. Employees with disciplinary matters or disputed absences sometimes face adjudication about whether they performed excepted work or were improperly absent. Some people report receiving corrections to their back pay months after the initial payment.

Mortgage companies don’t forgive late payments because the borrower was awaiting government reopening and back pay. Credit cards continue charging interest on unpaid balances. Utility companies continue collection efforts.

The 2026 DHS Shutdown: A Different Structure

The current DHS shutdown contains a wrinkle that distinguishes it from previous shutdowns: Immigration and Customs Enforcement and Customs and Border Protection continue operating with full funding despite the lapse.

These agencies possess independent funding authorization from a law called the One Big Beautiful Bill Act (passed to fund immigration enforcement), which provided approximately $165 billion for Trump administration immigration enforcement priorities, including $75 billion specifically for ICE and $65 billion for CBP. ICE can sustain regular operations for multiple years even in the complete absence of annual budget approval.

This creates a paradoxical situation. Immigration enforcement continues with full force, including detention and deportation. Meanwhile, immigration courts remain closed due to lack of funding, and immigration benefits processing stops.

The political implications became immediately apparent. Democrats sought to condition DHS funding on restrictions on ICE and CBP authority following a deadly shooting by federal agents in Minneapolis. Republicans resisted any restrictions on immigration enforcement authority. The resulting standoff left DHS partially unfunded, affecting FEMA, TSA, the Coast Guard, and other components, while the enforcement agencies Democrats sought to constrain continued operating with full funding and no new restrictions.

Long-Term Workforce Degradation

Research on the 2018-2019 shutdown documented substantial impacts on federal employee retention. In affected agencies, voluntary departures increased by approximately 19% above baseline rates. Among newer staff with less than ten years of service, the quit rate rose by 0.121 percentage points.

This pattern suggests that younger federal employees, those with skills they can use in other jobs, and those with fewer pension and retirement benefits they’ve built up are most likely to exit federal service after experiencing a shutdown.

The 2025 shutdown, lasting 43 days and surpassing 2018-2019 as the longest in history, likely produced substantially larger retention impacts. Federal employees with IT skills, engineering expertise, law enforcement training, and other valuable competencies face minimal obstacles to private sector employment, where pay often exceeds federal pay and working conditions don’t include mandated work without pay during government budget crises.

A cybersecurity professional earning $85,000 in federal service can earn $120,000 to $150,000 in private sector work. A software developer earning $95,000 in federal service can earn $140,000 to $180,000 in private sector roles.

Federal excepted employees working without pay experience profound alienation from their employers and from the political framework they ostensibly serve. One TSA officer spoke of the psychological weight: “This is more than financial strain. It’s the disrespect of being told ‘we need you to work, but we’re not going to pay you,’ over and over again.”

Supervisors report observable degradation in employee engagement, courtesy toward customers and colleagues, and commitment to excellence as shutdowns extend. In airport settings, fatigued and financially stressed TSA officers make more errors. In law enforcement settings, underpaid and demoralized officers make more mistakes. In regulatory agencies, inspectors conduct fewer and less rigorous inspections because organizational commitment to excellence has been compromised by failure to pay staff.

The Constitutional Question

The legality of compelling federal employees to work without pay has never been definitively resolved by courts, though the practice has become routine.

The strongest constitutional argument involves the Thirteenth Amendment’s prohibition on being forced to work against your will. Forced labor is prohibited even when technically “voluntary” if the economic coercion is sufficiently severe. Federal employees are unique in being prohibited by statute from striking—a prohibition that creates asymmetrical bargaining power over work conditions. When combined with the requirement to work without pay during a shutdown, the coercion becomes more legally problematic.

One legal scholar argued that “the Thirteenth Amendment sets a floor for free labor which is ineffective without the right to strike” and that the combination of strike prohibition and compelled unpaid work constitutes forced labor.

This argument has not been tested in the Supreme Court. Federal district courts have declined to immediately enjoin unpaid work requirements, often citing concerns about courts interfering with Congress’s power over the budget and the availability of back pay remedies after the shutdown ends.

The Fair Labor Standards Act, the federal law that sets minimum wage and overtime rules, creates additional questions about wage and hour compliance for excepted federal employees. The question of whether compelling federal employees to work without pay violates the FLSA remains unresolved by courts.

The strongest practical limit on the government’s ability to compel unpaid work emerges not from constitutional law but from decisions to quit. During the 2018-2019 shutdown, TSA screeners called out at rates exceeding 10 percent—more than three times the normal rate—forcing airport closures and ultimately contributing to political pressure to end the shutdown.

How Other Democracies Avoid Shutdowns Entirely

The United States stands alone among developed democracies in experiencing government shutdowns where critical services halt due to congressional failure to pass a budget.

No other country in the democratic world operates under a framework where failure to enact a budget creates a legal prohibition on government spending.

In the United Kingdom, the government simply cannot shut down due to budget lapse. If Parliament fails to pass a budget, the previous year’s budget automatically continues, keeping government operations and employee pay going. Australia, New Zealand, Canada, and most European nations operate under similar frameworks where budgetary disagreement does not trigger operational shutdown.

The British parliamentary framework contains additional structural features that reduce the probability of prolonged budgetary impasses. British government can be formed only when a coalition or party has enough votes to keep the government in power. If that confidence is lost over a budget vote, the government typically falls or new elections are called. This creates strong incentives for budgetary agreement because the costs of disagreement extend to the possibility of government collapse.

The United States Congress faces no similar institutional pressure. Congress cannot cut its own pay during a term—it’s in the Constitution, so members keep getting paid regardless of shutdown. The only cost of disagreement is disruption to federal services and federal employees.

Several lawmakers have proposed adopting a framework similar to other democracies, which would eliminate the possibility of shutdown-driven hardship for federal employees. Democratic Senator Mark Warner’s Stop STUPIDITY Act would establish exactly this framework—if Congress fails to pass a budget by the end of the fiscal year, the previous year’s budget automatically continues at the previous year’s funding levels. Republican Senator Ron Johnson has proposed similar legislation. Neither proposal has advanced substantially through Congress, partly because some members view the shutdown threat as a useful negotiating tool for securing policy concessions.

Who Bears the Cost of Congressional Dysfunction

The current framework distributes the consequences when Congress fails to pass a budget in a remarkably unequal way.

Members of Congress continue receiving paychecks during shutdowns. Congress cannot cut its own pay during a term—it’s in the Constitution. Executive branch leadership continues receiving pay. Agency heads, political appointees, and senior officials continue being paid while their staff do not.

Only federal employees—the people least responsible for budget impasses and least able to influence congressional behavior—experience the full financial and psychological weight when Congress fails to pass a budget. A TSA officer has no ability to compel Congress to pass a budget. A Coast Guard petty officer has no vote on budget negotiations. A Border Patrol agent has no leverage over congressional leadership. Yet these people bear the entire burden of congressional dysfunction through unpaid work and financial hardship.

They legally cannot refuse to accept that burden. The alternative—removal from federal service and loss of all accumulated benefits—proves even more devastating than financial hardship from unpaid work.

The February 2026 DHS shutdown will eventually end. Congress will pass a budget or a continuing resolution. Excepted DHS employees will receive their back pay, probably within a week of the government reopening.

But the structural problem remains. Until Congress adopts provisions like other democracies, or establishes mandatory paid status for excepted employees during extended shutdowns, or creates some other mechanism to ensure federal workers don’t bear all the cost when Congress can’t pass a budget, the next shutdown will produce the same result: hundreds of thousands of federal employees required to work without pay, bearing the cost of a political crisis they didn’t create and can’t resolve.

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