Back Pay Is On the Way

This story has been updated.

The government shutdown is over and payroll is back up and running. By the end of this week, most of the federal workforce will have received retroactive pay for the 16-day shutdown.

In fact, thousands of federal employees already have received back pay to make whole the partial paycheck they got during the shutdown, which lasted from Oct. 1 through Oct. 16. The Interior Business Center, run by the Interior Department, handles payroll for 42 government agencies and 240,000 federal employees. IBC deposited back pay on Tuesday to 174,994 federal employees in 25 agencies -- a week before their regularly scheduled paycheck on Oct. 29, according to Mike Fernandez, IBC's communications manager. "The payment for most employees will be 65 percent of gross pay for approximately 32 furlough hours during the biweekly pay period ending Oct. 5," Fernandez said by email. "The balance (35 percent) has been withheld to accomodate deductions and taxes."

Agencies that chose to participate in the "off-cycle" back payments include the Education, Interior, and Transportation departments as well as the Social Security Administration.

Perhaps this makes up for IBC’s data entry error last month that delayed the paychecks of 40,000 employees. 

Shutdown-affected federal employees with a different government payroll processor should receive their back pay in their next paycheck, which for many is Oct. 25.

The National Treasury Employees Union, which represents employees at the Customs and Border Protection agency and the Internal Revenue Service, praised those two agencies for expediting retroactive pay for workers. IRS employees will see their four days of missed pay in their next paycheck, which will arrive as early as Thursday. CBP employees will receive back pay for Oct. 1 to Oct. 5 as soon as Oct. 24. Their next regular paycheck will post to their bank accounts on Oct. 28.

“Getting both excepted and furloughed employees paid in a timely manner was a primary goal for NTEU,” said Colleen Kelley, the union’s president, in a statement.

For more information on how the shutdown affected pay and benefits, including leave accrual, read this guidance from the Office of Personnel Management.

Defining Spouses

OPM this week directed agencies to start defining a federal employee’s spouse “as a partner in any legally recognized marriage, regardless of the employee’s state of residency” for the purposes of leave under the 1993 Family and Medical Leave Act. The definition includes same-sex spouses but not unmarried domestic partners, unless those partners meet the requirements of a common law marriage in states where they are recognized.

The Family and Medical Leave Act provides workers with 12 weeks of unpaid leave for situations like the birth or adoption of a child; a seriously ill child, spouse or parent; or an employee’s own serious health condition. Over the years, the law has been expanded to include eligible family members of active-duty service members, National Guard and Reserves and veterans.

Gay federal employees are now able to take leave under FMLA to care for an ailing spouse of the same sex. Children of a same-sex spouse continue to be eligible for care under FMLA and should be treated the same as children of opposite-sex spouses, the OPM memo stated.

The Supreme Court in June overturned Section 3 of the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman and prevented same-sex spouses of federal employees and retirees from accessing benefits available to opposite-sex spouses of government workers. The decision means that the government will extend benefits coverage to same-sex federal spouses and children, even if they live in a state where gay marriage is banned, provided they have a legal marriage license.

OPM is in the process of updating its FMLA regulations with the new definition of spouse per the Supreme Court. In the meantime, the Oct. 21 memorandum from acting OPM Director Elaine Kaplan makes the benefit retroactive to June 26, 2013, the day of the Supreme Court decision.

The 2013 Supreme Court decision does not affect an employee's entitlement to use other leave benefits to care for a same-sex domestic partner. In 2010, OPM amended the definitions of “family member” and “immediate relative” to cover same-sex and opposite-sex domestic partners when using sick leave, funeral leave, voluntary leave transfer, voluntary leave bank and emergency leave transfer.