TSA Agents Must Work Unpaid During Shutdowns. Here’s What Labor Law Says.

Last updated 2 hours ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

This isn’t some bureaucratic oversight or emergency improvisation. It’s exactly what federal law allows.

The legal framework permitting the government to require unpaid labor from TSA screeners rests on statutes that would likely violate wage and hour laws if any private employer tried the same thing. A restaurant can’t tell its servers to work through a cash flow crisis without pay. A hospital can’t require nurses to show up unpaid during budget negotiations. The federal government operates under different rules, rooted in laws about how Congress allocates money to agencies and court decisions that turned shutdowns from rare events into political tools.

What labor law says about mandatory unpaid federal work requires looking at three interconnected legal structures: the law that stops agencies from spending money Congress hasn’t approved; the law that sets minimum wage and overtime rules—but it doesn’t apply to most federal workers in the way it applies to private employees; and the back pay system, which promises retroactive compensation after shutdowns end.

How an 1884 Statute Created Modern Shutdowns

The law that stops agencies from spending money Congress hasn’t approved started as a straightforward budget control measure. Congress wanted to prevent federal agencies from spending money they hadn’t been allocated, forcing agencies to operate within their budgets rather than running up obligations and dumping them on the Treasury.

For nearly a century, this caused no shutdowns. Agencies kept operating during funding gaps, minimizing nonessential spending while maintaining basic functions. The transformation came in 1980, when President Carter asked Attorney General Benjamin Civiletti to interpret the act amid repeated funding lapses caused by appropriations bills getting blocked by disagreements over abortion and school integration.

Civiletti’s opinion fundamentally reinterpreted the statute, concluding that agencies couldn’t spend money during appropriations lapses except to shut down orderly or address emergencies threatening life or property. Employees who are required to keep working perform work deemed necessary to protect life and property, required by statute, necessary to the President’s constitutional duties, or funded outside annual appropriations.

The critical consequence: employees who are required to keep working can be required to work, but they can’t be paid until appropriations return. The statute prohibits committing to spend money or spending money when no appropriation exists. An agency can lawfully direct TSA screeners to screen passengers, but it cannot legally compensate them for that work until Congress passes a funding bill. The government doesn’t have to pay them while they work—only a promise of retroactive payment once funding resumes.

The Fair Labor Standards Act Doesn’t Protect Federal Workers

The FLSA does not explicitly exempt all federal employees. Instead, the Office of Personnel Management classifies individual federal employees as either exempt or nonexempt depending on their job duties and salary. During shutdowns the interaction between FLSA protections and the prohibition on spending unapproved funds creates a situation where screeners must work without immediate compensation despite FLSA coverage. Most civilian federal employees working for agencies like TSA, the FBI, or the Department of Agriculture receive limited FLSA protections compared to private-sector workers in similar positions.

A private employer facing temporary cash flow problems cannot legally pay employees below minimum wage, cannot skip overtime payments, cannot demand work simply because the business faces financial constraints. The FLSA doesn’t provide an emergency exception or a temporary suspension mechanism. It requires payment, period.

The federal government, operating under the law that stops agencies from spending money Congress hasn’t approved, can direct employees who are required to keep working to work for weeks or months with no compensation whatsoever.

Federal employees are supposed to be compensated through a different mechanism—back pay legislation and statutory entitlements under Title 5 of the U.S. Code rather than Title 29’s wage protections. This framework only works if back pay gets provided. If Congress decided to withhold back pay after a shutdown—something that hasn’t happened but remains theoretically possible—the FLSA’s limited application would result in permanent wage loss with no remedy.

State wage protections don’t apply to federal employees because federal law wins out over state law. A TSA screener working at San Francisco International Airport receives no benefit from California’s stringent wage-and-hour laws. Federal employment offers fewer wage protections than private employment, despite federal workers serving a sovereign employer with constitutionally-mandated revenue sources and theoretically unlimited funding capacity.

Back Pay: The Promise That Makes the System Work

The mechanism compensating federal employees for shutdown work isn’t immediate wages but paying them later for work they did without pay—called back pay. Since 2019, this has been governed by a 2019 law requiring the government to pay federal workers for shutdown periods, which states that federal employees who were furloughed or performed work during appropriations lapses “shall” receive retroactive payment for the entire period.

Agencies “shall” pay federal employees their standard rate for the lapse period, whether the employee was furloughed or worked. Furloughed employees receive their regular salary as if they’d worked. Workers who are required to keep working receive standard pay for all hours worked, plus overtime, night differential, holiday pay, or other premium compensation they would have earned normally. A TSA screener working a 40-hour week during a shutdown earns the same total compensation as if the shutdown never occurred—eventually.

Back pay requires Congress to provide it. While Congress has authorized back pay after every extended shutdown since 2013, this remains a discretionary legislative act rather than an automatic entitlement.

The timeline for receiving back pay varies by agency but typically requires weeks to months. Federal employees experienced delays as different agencies paid employees on different dates, stretching out the process. These initial payments included only base pay, with overtime and differentials processed in subsequent cycles.

Federal employees who believe they haven’t received proper back pay can file a complaint with their agency, a federal board, or go to court. Litigation over back pay has proven complex and largely unsuccessful. Courts have generally rejected claims on grounds that back pay legislation would eventually remedy wage loss.

The Thirteenth Amendment Question

The deepest constitutional question raised by TSA screeners working: does this constitute forced labor—which the Thirteenth Amendment banned?

Some have argued that requiring federal employees to work, combined with the prohibition on federal worker strikes, creates precisely the coercive labor arrangement the Thirteenth Amendment was meant to stop.

The counterargument rests on federal employment law fundamentals. Federal employees accept positions knowing federal employment operates under different rules than private work. Workers who are required to keep working receive back pay after shutdowns end, distinguishing the arrangement from true involuntary servitude where workers receive nothing. The government hasn’t “compelled” work in the Thirteenth Amendment sense because employees remain free to resign.

This argument gets complicated when combined with the strike prohibition. Federal employees cannot strike and cannot resign en masse. This creates a category of workers lacking the practical exit option that distinguishes employment from involuntary servitude.

A law review article analyzing the 2019 shutdown explicitly raised this constitutional question, arguing that the combination of mandatory unpaid work, continued absence of strike rights, and the extended 33-day shutdown duration created serious Thirteenth Amendment concerns. The author noted that courts have struck down systems that simply create conditions that work like slavery economically regardless of formal consent. Historical Thirteenth Amendment cases invalidated sharecropping and debt systems that workers agreed to but couldn’t escape, because arrangements created conditions so economically coercive that meaningful choice became impossible.

Federal courts have never fully resolved the Thirteenth Amendment question in the shutdown context. During the 2019 shutdown, a federal judge refused to grant court orders forcing the government to pay workers right away, stating the court wouldn’t take sides in the dispute between Congress and the President. The judge acknowledged FLSA claims but rejected them on grounds that back pay would eventually remedy wage loss.

No court has sustained a Thirteenth Amendment involuntary servitude claim against the federal government based on mandatory unpaid work during shutdowns. Constitutional law scholars debate whether the Supreme Court would recognize such a claim, with some arguing the Court’s modern Thirteenth Amendment jurisprudence provides sufficient flexibility to address this situation, while others contend that the principle that employers can generally fire workers and the back pay framework render the claim unlikely to succeed.

What Work Can Be Required

The statute specifies that work must be necessary to protect life and property, required by statute, necessary to discharge the President’s constitutional duties, or funded outside annual appropriations.

For TSA screeners, the justification rests on “protecting life and property”—airport screening is deemed necessary to prevent terrorist attacks and protect passenger safety. Can TSA screeners be required to perform duties far beyond core screening? Can they be reassigned to different airports or forced to work extended shifts? Can they be required to perform administrative, maintenance, or other ancillary tasks not strictly necessary to airport screening?

The OMB guidance and agency contingency plans provide limited clarity. The guidance states that workers who are required to keep working can only perform necessary work and must be furloughed when not performing those functions, suggesting that administrative work or routine maintenance that could be deferred wouldn’t qualify.

This distinction matters because it defines the scope of mandatory unpaid labor. If TSA screeners can be required to perform only core screening, the justification remains relatively narrow. If the government can force TSA screeners to perform any airport-related work—administrative tasks, maintenance, special projects—the justification expands dramatically.

TSA screeners and their union representatives have substantial uncertainty about what work they can be required to perform. While TSA leadership has stated screeners must continue screening, the agency hasn’t provided detailed guidance on whether screeners can be reassigned, required to perform non-screening duties during gaps between flights, or asked to work extended shifts to cover call-outs by other employees who resign or become unable to continue working.

If a TSA screener believes they’re being required to perform work that doesn’t qualify, they can file a grievance or contact their union. The review process occurs after the work is performed and may not provide immediate relief.

What Happens When Unpaid Workers Get Injured

A critical question: what happens when workers who are required to keep working are injured while working during shutdowns?

Federal employees, including TSA screeners, are covered by the Federal Employees’ Compensation Act instead of state workers’ comp that covers private workers. This federal program provides injured federal employees with medical treatment, disability benefits, and rehabilitation services regardless of fault.

Whether workers’ comp covers injuries that happen during shutdowns—while employees are working but not being paid—remains unclear. The text provides that workers’ compensation is paid to employees only if they’re injured while performing their duties. This language appears to cover workers who are required to keep working during shutdowns, since they’re performing assigned duties even though they’re not receiving compensation.

A practical issue arises: if an injured worker who is required to keep working files for workers’ compensation benefits, what’s their “wage” for calculating benefits? Federal workers’ compensation benefits are typically calculated based on the employee’s regular salary. During shutdown periods, the employee is receiving no salary.

Does the benefit calculation use the employee’s normal salary, or does it use zero? The statute and regulations don’t explicitly address this question. The prudent interpretation would recognize that workers who are required to keep working during shutdowns are performing regular duties and should receive workers’ compensation calculated based on regular compensation, not the zero wages they’re receiving during the shutdown.

If an employee were injured during a shutdown and the federal government attempted to deny benefits on grounds that the employee was working and therefore had no wage base for benefit calculation, the employee would face years of litigation to recover workers’ compensation benefits while medical bills accumulated. This scenario hasn’t been extensively litigated, but it represents a genuine gap in the framework governing work during shutdowns.

Union Rights During Shutdowns

The American Federation of Government Employees represents approximately 90% of TSA employees and provides a potential mechanism for workers to challenge shutdown work requirements or negotiate protective terms. Federal law severely restricts union bargaining power during shutdowns.

Federal employees possess limited collective bargaining rights under federal law governing union negotiations with the government, with entire categories of management decisions explicitly excluded from topics the union can negotiate about. Management retains the right to decide how many workers to assign and at what pay levels and to make determinations regarding emergency operations.

During shutdowns, agencies argue that work management decisions constitute emergency situations where the union can’t negotiate. This means unions cannot negotiate over shutdown staffing levels, work assignments, or conditions of work during appropriations lapses.

Federal law also explicitly prohibits federal employees from striking. The statute provides that federal employees cannot “participate in a strike, or claim the right to strike, against the Government of the United States.” This prohibition is enforced through both civil service procedures (removal from employment) and criminal law (up to three years imprisonment).

The combination of limited bargaining rights and the strike prohibition severely constrains union leverage during shutdowns. When private-sector workers face conditions they believe violate labor law, they can strike to pressure employers to settle. Federal employees face termination and criminal prosecution if they attempt this strategy.

The prohibition on federal strikes does contain a limitation that hasn’t been fully tested: the statute prohibits participation in strikes “against the Government,” and questions exist about whether simply declining to work during a shutdown constitutes a “strike against the Government” or merely a refusal to work under conditions individual employees find untenable.

Federal employee unions have emphasized that workers who are required to keep working should continue reporting to work despite lack of pay, arguing that walkouts would expose employees to prosecution and termination. Some have raised questions about whether the government could successfully prosecute employees who simply refused to work, given concerns that this amounts to forced labor. This boundary remains untested, creating a zone of uncertainty where workers who are required to keep working face theoretical criminal liability but the government’s enforcement capacity and authority to prosecute such cases remains unclear.

The Historical Record: Courts Won’t Intervene

Previous shutdowns have generated disputes over mandatory unpaid work. Courts have generally been reluctant to intervene in these disputes, often citing concerns about back pay eventually remedying wage loss and the separation of powers between branches of government.

The 2018-2019 shutdown (which lasted 34 days) generated more extensive litigation, with federal employee unions filing claims in federal appeals courts and trial courts arguing various theories, including wage-and-hour violations and constitutional concerns. These cases were resolved primarily through settlement, with courts generally declining to grant court orders forcing the government to pay workers right away.

Federal employee unions filed lawsuits challenging both the mandatory unpaid work requirement and the administration’s attempt to conduct mass terminations of federal employees during shutdowns. The unions raised Thirteenth Amendment involuntary servitude arguments, violations of the law that stops agencies from spending money Congress hasn’t approved, and constitutional due process concerns. A federal judge ordered the government to stop firing federal workers during shutdowns, but the broader question of whether mandatory unpaid work violates the Thirteenth Amendment or other constitutional provisions wasn’t fully addressed.

This litigation history reveals that courts have been extremely hesitant to intervene in shutdown employment disputes, preferring to leave such matters to Congress and executive branch negotiation. Judges have cited concerns about the court interfering with the roles of Congress and the President, arguing that court orders requiring wage payment or limiting shutdown procedures would inappropriately involve the judiciary in disputes between the legislative and executive branches. Courts have emphasized that back pay eventually compensates employees for lost wages, suggesting that even if work requirements are harsh, they’re not permanent.

The Thirteenth Amendment arguments remain largely unlitigated in federal courts, leaving open the possibility that a federal judge could ultimately recognize constitutional constraints on the government’s authority to require indefinite unpaid labor.

Where This Leaves TSA Screeners

TSA screeners working during shutdowns operate within a system that treats federal employment fundamentally differently than private-sector work. They have fewer wage protections than similarly situated private employees would possess. They cannot strike to pressure the government. They have limited ability to negotiate through unions. They must rely on back pay legislation rather than immediate compensation.

Yet they also possess protections private workers lack: an essentially guaranteed right to back pay after shutdowns end (barring extraordinary action by Congress), employment in a sovereign entity with unlimited revenue sources, and the benefits of federal employment including health insurance continuation and retirement contributions.

Understanding what governs mandatory unpaid federal work requires recognizing that it rests on interconnected assumptions: that Congress will provide back pay after shutdowns end, that agencies don’t expand the definition of necessary work too far, that courts won’t intervene to impose immediate compensation requirements, and that courts haven’t yet decided whether the Thirteenth Amendment applies to federal employment decisions.

If any of these assumptions failed—if Congress withheld back pay, if agencies designated extensive non-core work as necessary, if courts recognized constitutional constraints on unpaid labor, or if states attempted to enforce wage protections—the entire system would require rethinking.

TSA screeners currently working participate in an arrangement whose final constitutional and statutory boundaries remain to be determined. They’re doing work the law says is necessary. They’re not getting paid for it until Congress decides they should be.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.