2019 emails boost White House's view that furloughed workers aren't guaranteed back pay

• Amid the outcry over the possibility of up to 750,000 furloughed workers being denied back pay, OMB general counsel Mark Paoletta briefed Republican congressional staffers Tuesday about a draft OMB memo, first reported by Axios, concerning the furlough law.
• Paoletta discussed the emails between the office and congressional budget staff in 2019 that raised the same points, administration and congressional sources tell Axios.

Zoom in: The law in question, the ''Government Employee Fair Treatment Act," or GEFTA, was signed by Trump during the 2019 shutdown, which lasted a record 35 days.

• At the time, the White House announced GEFTA "requires the compensation of government employees for wages lost, work performed, or leave used during" a shutdown.
• That was the prevailing view until this shutdown began and OMB began to publicly interpret the law in a different way than everyone else.

Behind the scenes: Unknown to many, GEFTA was quietly amended nine days after its initial passage to indicate that furloughed workers weren't automatically entitled to back pay, according to the 2019 email correspondence.

• That amendment says furloughed workers shall be compensated "subject to the enactment of appropriations Acts" after a shutdown ends.
• So Congress has to take the extra step of specifically authorizing the money for the furloughed workers, according to the emails.
• The amendment was tucked into the bottom of the joint resolution ending the shutdown that Trump signed on Jan. 25, 2019.

What they're saying: Labor leaders and Democrats accuse Trump's administration of flouting the letter and intent of the law as originally signed.

• "If OMB chooses thuggish intimidation tactics over following the law, it better prepare to face the American people in court," said Democratic Sen. Tim Kaine of Virginia, a state with one of the largest shares of federal workers.
• Kaine's statement emphasized that he was "proud to work across the aisle in 2019 to pass legislation that President Trump himself signed to guarantee back pay to federal workers in the event of a shutdown."

The timeline: The day before Trump signed the original version of the law on Jan. 15, 2019, legislative and executive branch budget staffers began having a quiet, hyper-technical conversation by email about how to estimate the cost and consequences of the legislation.

• At 10:17 a.m. Jan. 14, 2019, a Senate staffer wrote OMB with questions about the "ambiguous" legislation (abbreviated as S.24) that needed to be "clearer" because it "appears to create a permanent entitlement" for furloughed workers but had other language that conflicted with that.

• "S. 24 does not create an entitlement for furloughed employees," a senior OMB official emailed back at 5:07 p.m. on Jan. 17 , 2019.
• "It's preferable if S. 24 were further clarified to make it more explicit that payment to furloughed employees is contingent on future appropriations and eliminate any confusion about the relationship between the newly enacted statute and future appropriations bill[s]," the email continued, foreshadowing OMB's current position.
• OMB then proposed the exact amendment language that was grafted into GEFTA shortly afterward to end the 2019 shutdown.

What's next: Who knows when the shutdown will end. But there's general bipartisan consensus that the estimated 750,000 furloughed federal workers should get back pay when it's over.

• Trump is not explicitly and unconditionally on board, and insiders expect he'll use the threat of withholding pay and firing workers to try to pressure Senate Democrats into agreeing to end the shutdown.
• A senior White House official said the administration isn't backing away from OMB's interpretation of the law: "This view was explored, discussed and supported in the first term, and we're continuing to explore, discuss and support that view now."