If Congress fails to pass a continuing resolution by next Tuesday, about half of the Pentagon’s civilian workforce would be placed on unpaid furlough under contingency plans the Defense Department began to distribute on Friday.
The final, department-wide civilian furlough tallies are still being calculated, but DoD officials say they expect around 400,000 civilians to be placed in a “non- pay, non-work” status. The numbers are based on the preparations the department made for a potential government shutdown in 2011, and the contingency plans have changed very little since then, said Robert Hale, DoD’s comptroller.
He said military members, who legally cannot be put into a non-work status during a shutdown, will be ordered to work as normal.
“We can and will continue to support key military operations. We’re allowed to do that by law, but the law would force us to disrupt many of our support activities,” Hale said. “We wouldn’t be able to do most training, we couldn’t enter into most new contracts, routine maintenance would have to stop, we couldn’t continue efforts to improve contracting and financial management including our audit improvement efforts. Even worse, a lapse of appropriations causes civilian furloughs, and it’s one more blow to the morale of our civilian workforce.”
DoD would face limits on new financial obligations
In general, DoD will only be allowed to take on new financial obligations for functions that are deemed critical to the safety of life and property, including wartime operations. That means civilians who directly support those “excepted” activities will stay on the job, potentially working without pay for a while, but under federal law they would have to be reimbursed once Congress passes some type of appropriations bill for 2014.
But without a spending package covering at least a portion of the fiscal year which starts Tuesday, the department cannot write any checks that would normally come from 2014 dollars, meaning pay for military members and civilians who stay on the job could be delayed. Also, unless they relate directly to a narrow range of excepted activities, no new contracts, task orders or modifications to previous agreements with vendors can be signed.
However, that doesn’t mean DoD’s contractor employees would be sent home, at least in the early days of a shutdown.
“Most of them are going to be working on contracts that are just almost by definition funded with 2013 dollars. If the lapse continued, that number would fall,” he said.
For DoD’s civilian workforce, the furlough that would happen under a shutdown differs significantly from the sequestration-induced one that most of the department’s employees went through this past summer. In that case, the department used its own authority to send workers home in an effort to save money wherever it could. Under a shutdown scenario, the rules are dictated almost entirely by federal law.
For example, while DoD furloughed most of its workers who are paid by working capital funds this summer, they would actually stay on the job during a shutdown furlough.
“Because the working capital funds have a cash balance that’s based on funds obligated before the lapse,” he said. “And so we have the funds and they don’t have to be furloughed right away. Now that would change if we run out of cash in those funds.”
Contractors would be prohibited from performing ‘inherently governmental’ work
While military members and many contractors would still go to work during a government shutdown, there are restrictions on what they would be able to do. For example, contractors would still be prohibited from doing “inherently governmental” work. And military members would be prohibited from performing the duties of presidentially-appointed and Senate-confirmed officials.
And Hale said while things like the war in Afghanistan definitely constitute “excepted” activities, that doesn’t necessarily mean all military commanders have the authority to carry out their operations as normal.
“These are the sort of gray area decisions that our managers and commanders are making right now as they identify excepted and non-excepted,” he said. “But I think most of the ships at sea would stay there. If there were some that stayed strictly in training and weren’t excepted, they would be able to stand down if they had to in an orderly fashion. And we’ll have to make some judgment about what that means. Obviously, you can’t get the ship back immediately.”
A shutdown would also affect the movement of military personnel. For example, they could be sent to Afghanistan, since the military operations there are an excepted activity. But troops due to come home wouldn’t necessarily be allowed to travel back to the U.S. during a lapse in appropriations. Routine moves of service members from one duty station to another would also be banned, and members already serving on temporary duty in another location would be told to return home as quickly as practical.
Depending on how long a shutdown lasts, military members and excepted civilians may not see an impact to their paychecks at all. Because of the timing, the Sept. 27 paychecks for civilians went out as planned, and the Oct. 1 payments for military members will as well because they’re paid out of 2013 funds.
For those who work during a shutdown, assuming the political impasse is resolved in the next week or so, the paychecks for the next two-week pay period will look pretty normal, Hale said.
“I think the earliest we’d start having trouble would be Oct. 7,” he said. “That’s not a hard date, and we’ll push it as far as we can. But at some point we have to run the payroll. Frankly, I’m in triage mode right now. … We’ll put it off as long as we can. Clearly, if the lapse extends to Oct. 15, there won’t be a question. There may be some time prior to that when we’d be faced with either having to take a chance and go ahead and run the payroll and be ready, or delay it.”
But the situation would be very different for contractors who are laid off because their contracts couldn’t be signed or renewed or for civilians who are furloughed.
For those government civilians, Congress would have to take a separate action after a budget is passed to make them whole for the work days they lost. Lawmakers did just that after the last shutdowns in the mid-1990s, but it’s far from clear whether they would do it this time.
Hale served in a similar position back then, as the comptroller of the Air Force.
“One thing I distinctly remember is that it was a horrendous blow to the civilians. I mean, there were months after that that I was hearing from them,” he said. “We used a phrase back then that we have stopped using because it was wrong: ‘essential’ and ‘non-essential.’ It’s just not right, because it’s not whether you’re essential, it’s whether the law says you’re doing an excepted activity. There are lots of essential items to keep this military going that don’t deal directly with excepted activities. We’ve stopped that. Maybe it’ll help, but probably not too much, especially coming on the heels of the summer furloughs. I am very concerned about the effect this is going to have on our civilian workforce.”