Contractor Back Pay Bills Swirl Around Talks to Avoid New Shutdown

House and Senate negotiators during Wednesday’s home-stretch drama aimed at preventing another partial government shutdown spoke repeatedly of including in their package one of several bills introduced in recent weeks to provide back pay for contractor employees. Ultimately, they were unable to reach agreement to include any such provision in the massive spending legislation finalized late Wednesday to avert another shutdown.

To varying degrees, the bills would cover low-income employees who work at agencies as security guards, cafeteria workers and janitors as well as some medium-income employees of contracting firms who provide agencies with supplies and services.

“We are trying to get the conferees to approve a proposal to deal with federal contracts,” Senate Minority Leader Chuck Schumer, D-N.Y., said on the Senate floor. “Thousands of federal contractors have not been reimbursed from the 35-day shutdown… To contractors, many of them just working people, are in the same boat as government employees, except they haven't gotten their back pay. They were hostages, just like the government workers were hostages.”

House Minority Leader Kevin McCarthy, R-Calif., also acknowledged that the issue was in play, though later on Wednesday, Sen. Roy Blunt, R-Mo., told reporters that President Trump would consider such an amendment to the legislative package a deal breaker. The details of the spending package to keep government open past Friday were still unreleased as of Wednesday night, but according to a report in Roll Call, the contractor back pay language did not make it into the final version. 

The major Senate version of a contractor support bill (S. 162) was introduced by freshman Sen. Tina Smith, D-Minn., proposing an “effort to make sure Americans who work shoulder-to-shoulder with federal employees receive back pay. These are people who are often invisible—working in cafeterias, cleaning offices after others go home, and keeping our buildings safe—and they deserve back pay.”

Smith worked in consultation with Democratic colleagues Chris Van Hollen and Ben Cardin of Maryland, as well as Mark Warner and Tim Kaine of Virginia and Sherrod Brown of Ohio.

Also signing on when Smith unveiled the bill on Feb. 1 was Maine Republican Susan Collins.

“Government shutdowns represent a failure to govern and harm not only those who need to interact with the closed agencies, but also federal workers, federal contractors and their families,” Collins said. “Last month, Congress passed and the president signed into law legislation I co-authored to guarantee that federal employees would be paid retroactively once the shutdown ended. Congress should now take the next step to ensure that federal contractors—particularly low-wage employees…—are given back pay to help offset the financial injury they experienced due to furloughs and reduced hours.”

Smith’s bill, which has the backing of the Service Employees International Union, would provide back pay to employees earning up to 200 percent of the poverty line for a family of four, as well as those employed under the Davis-Bacon Act (for federally funded construction projects). It would protect taxpayers by requiring accountability procedures in reviewing evidence of merited back pay submitted by contractors using pre-existing records.

On the House side, Del. Eleanor Holmes Norton, D-D.C., had recently reintroduced (H.R. 339) her “low-wage” contractor back pay legislation from the previous Congress. Her bill filed Jan. 8 says simply that “government shall provide compensation to such employees at their standard rate of compensation for the period of such lapse.”

It was endorsed but then supplemented on Jan. 17 in a similar bill (H.R. 678) by Rep. Ayanna Pressley, D-Mass. Pressley’s version would add construction workers to the coverage while also ensuring “retroactive back pay for workers, in an amount equal to their weekly compensation or up to 200 percent of the federal poverty line.”

A broader bill went into the hopper on Jan. 29 from Rep. Donald Norcross, D-N.J. His “Fairness for Federal Contractors Act” (H.R. 824), co-sponsored by Rep. Chris Smith, R-N.J., would provide qualifying contractors $1,400 a week in back pay. “It’s our moral obligation to these American families to pass the Fairness for Federal Contractors Act, which will also help prevent a dip in our economy and protect our future federal workforce,” Norcross said. “Contractors and employees work side-by-side, and their pain is just as real.”

Norcross gave as an example the Atlantic City Federal Aviation Administration tech center, where contracted employees make up 50 percent of the 3,000 employee-workforce.

Also backing Norcross’s approach are labor leaders from the AFL-CIO, the Communications Workers of America and the International Association of Machinists and Aerospace Workers.

Norcross’s bill reflects the agenda of the 400-company-member Professional Services Council, which has long pushed for reliable funding to avoid or minimize the pain of government shutdowns.

The Norcross bill “is the next generation from Smith’s and would provide broader coverage for contract employees, with higher thresholds for coverage” than just those under the McNamara-O'Hara Service Contract Act, Alan Chvotkin, PSC’s counsel and executive vice president, told Government Executive on Wednesday. Given that these bill sponsors are not serving on the conference committee negotiating the final package, no one can be sure that the contractor back-pay provisions will make it into the final deal, Chvotkin said. “But we will continue to pursue it as effective for contractor employees” in achieving fairness vis-à-vis federal employees, who, when furloughed, usually are awarded back pay.

Chvotkin’s contractors group on Jan. 28 sent a letter to Sen. Rob Portman, R-Ohio, endorsing his bill (S. 104) to avoid future government shutdowns by requiring, following a levelly funded continuing resolution for a 120-day grace period, a 1 percent across-the-board sequester on agencies until a deal is reached.

This story has been updated.