Federal employee: Legality of "on-call" status during gov shutdown

December 21, 2018 11:31 PM

USA Gov Shutdown filter: "Excepted employees" whose jobs are necessary to maintain life or property must work during a shutdown and are guaranteed to be paid back when it's over. OMB says all others will not work. My agency is considering creating a middle status of "on-call" for employees who process paperwork that has Congressional deadlines. Can they legally require on-call work?

So far this is rumor but would be finalized with only hours before a shutdown actually hits. The paperwork is not necessary to maintain life or property. The employees do not usually have an on-call work schedule. The on-call employees would be asked to be not more than 2 hours from the office for the duration of the shutdown, and to come into the office and work if the time-sensitive paperwork hits their desk, and work only long enough to process that paperwork. The paperwork is time-sensitive because of Congressional deadlines but does not have its own funding stream and frankly, this type of paperwork can take months or years in total to process in total so having a few days or weeks delay would just be lost in the sauce. Since the "on-call" are not excepted employees there would be no guarantee of back pay when the shutdown ends. I see nothing in OMB's Furlough Guidance about an "on-call" status, and am angry that my activities may be restricted during the shutdown AND possibly not paid for. Is this legal? Also, what to do about it, given that this information came out on the brink of a shutdown? Thanks to all!

posted by anonymous to Law & Government (8 answers total)

IANALaborL, and IANYL. But there’s got to be some sort of state law prohibiting employers from requiring unpaid on-call time (no idea how labor law works in DC, if you’re in DC). I would look for some kind of state (or DC)department of labor hotline to answer questions, and ask if your employer can require unpaid on-call availability, and if they can’t what’s the state-law basis for the prohibition.

If that’s a violation of state law. and my guess is that it is (but I don’t know), bring it up with your manager and tell them you won’t be on call unless you’re paid in accordance with law for the oncall period. (This seems interpersonally really difficult, I admit, but I haven’t got a better idea.)
posted by LizardBreath at 4:40 AM on December 22, 2018

I'm fairly certain what your leadership is proposing is against (federal) law. They can't ask you to work any more than you can volunteer to do the work without pay. That said, I'm fairly sure that you can be required to show up on very short notice once a funding bill is enacted even if you can't work during the funding lapse, so being far away may not be wise regardless of whether they can actually "call you in" during the furlough.
posted by wierdo at 5:24 AM on December 22, 2018

I think the proposal is that the actual work time would be paid, but would be minimal compared to the on-call time. That is, workers would be on call to come in at short notice for, e.g., a week, but would only be paid if they were called in and would only be paid for the few hours of actual work.
posted by LizardBreath at 5:48 AM on December 22, 2018

I’m aware of some who got official guidance to ignore OPM guidance, so I think there’s some shades of grey out there. But this is what you have a union for, right?
posted by OrangeVelour at 5:54 AM on December 22, 2018

Isn't there some sort of federal employees union? I'd ask them.
posted by salvia at 8:53 AM on December 22, 2018

Do you have a contract? Your contract may cover this issue--talk with your Union rep if you have one. The main problem I see with this is that it is holiday season. You may be celebrating when called. I'm sure your employer has rules that you cannot work when impaired. If called while celebrating, you can say that you are not able to work. Or, you can do what some of my coworkers do, which is just not answer the call. Generally, even if protected by a contract, the rule is do whatever you are ordered to do and then grieve after. The exception to this is if they ask you to do something illegal or something that could end up with you in the hospital--then you can refuse up front. Asking you to try to get into work after a couple of cocktails fits both those circumstances.
posted by agatha_magatha at 9:11 AM on December 22, 2018

Federal employee here (but not subject to the current shutdown): The definition of excepted employees and allowed actions during a shutdown is broader than you stated. For more info, see the first two PDFs under "OMB Guidance" on the OMB shutdown furlough webpage, both updated this month. I'm specifically thinking of "Activities that an agency must continue, in the absence of appropriations, because their continuation is “necessarily implied” from the authorized continuation of other activities."
posted by marteki at 10:21 AM on December 22, 2018

This seems like a good question for an ombudsman, if you have one. If it turns out to be strictly verboten, then they can run it up to the IG or whomever needs to shut it down and crack heads, so you hopefully don't have to.
posted by Kadin2048 at 10:37 PM on December 22, 2018