Democrats are in a panic today after Axios reported a leaked memo from the White House Office of Management and Budget (OMB) which challenges a 2019 law widely interpreted to guarantee back pay to furloughed employees during a government shutdown.

According to OMB general counsel Mark Paoletta, the 2019 Government Employee Fair Treatment Act doesn't guarantee back pay, but instead creates the conditions for Congress to authorize those payments - for which lawmakers must set aside additional funds to compensate workers returning from furloughs - in this case, some 750,000 employees. 

"Does this law cover all these furloughed employees automatically? The conventional wisdom is: Yes, it does. Our view is: No, it doesn't," an official told the outlet. 

If the White House runs with this interpretation, it would 'dramatically escalate' pressure on Senate Democrats to end the week-old shutdown, Axios suggests. 

"This would not have happened if Democrats voted for the clean CR," a senior administration official told the outlet. 

Last month a FAQ on the White House's website was amended to exclude reference to the 2019 law, as first reported by Government Executive today. 

Prior to Oct. 3, OMB’s Frequently Asked Questions During a Lapse in Appropriations document highlighted the Government Employees Fair Treatment Act, the law enacted in 2019 as part of the deal to end the 35-day partial government shutdown during President Trump’s first term to ensure both furloughed and excepted federal workers receive backpay once government funding has been restored. Prior to the law’s passage, Congress had to OK furloughed workers’ backpay following each individual lapse in appropriations.

When asked about it on Tuesday, President Trump said that it "depends on who we're talking about."

That said, the Office of Personnel Management (OPM)'s shutdown guidance - last updated Sept. 28 - still states that furloughed workers will receive back pay at the conclusion of the shutdown. 

"After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough period," reads the guidance. "Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates."

Until the White House comes out and explicitly outlines their position, the backpay issue will be both leverage and in limbo.