What are the legal consequences if a furloughed employee performs prohibited work during a shutdown?
Executive summary
Furloughed federal employees are explicitly barred from performing their regular duties during a funding lapse, and agencies may not accept voluntary services; that prohibition is grounded in Executive Branch shutdown guidance and the Antideficiency Act framework [1] [2]. If a furloughed employee nonetheless performs prohibited work, the record shows the likely consequences are administrative discipline, potential chargeable absence classifications, and agency-level personnel actions, though available public guidance is limited about criminal prosecution or loss of statutory retroactive pay in specific cases [3] [4] [5].
1. The rulebook: what forbids work during a shutdown
Shutdown guidance from OPM and agency FAQs make clear that employees designated as non-excepted (furloughed) “may not perform any work” during a lapse in appropriations except minimal actions to effect an orderly shutdown, and agencies are instructed they may not accept voluntary services from furloughed employees [3] [1] [6].
2. The statutory frame: Antideficiency Act and related authorities
The prohibition traces to the Antideficiency Act and implementing guidance used across agencies — the Act and OMB/DOJ instructions govern who is “excepted” and who must be furloughed, and federal guidance repeatedly warns that non-excepted employees cannot lawfully continue duties during a funding lapse [2] [7] [6].
3. Immediate administrative consequences reported by agencies
Agency guidance and FAQs describe direct personnel consequences: furloughed status must be documented, performing unauthorized work can lead to disciplinary action, and personnel may be charged with absence without leave (AWOL) or other adverse administrative classifications depending on the circumstances [4] [5] [8].
4. Criminal or statutory exposure — what the public sources say and do not say
Public shutdown guidance emphasizes the legal bar on accepting voluntary services and frames the prohibition as statutory, but the supplied materials stop short of cataloguing routine criminal prosecutions or fines for individual furloughed employees who perform prohibited work; the enforcement emphasis in the sources is administrative control and agency compliance with appropriations law rather than a detailed list of criminal penalties [1] [2] [6]. The reporting does not definitively state whether isolated instances would trigger Antideficiency Act prosecutions or when agencies would pursue criminal referral.
5. Pay, back pay and related financial effects
The Government Employee Fair Treatment Act and agency practice provide for retroactive pay when appropriations are restored, and general guidance affirms back pay for furloughed employees after a lapse ends; these sources, however, do not lay out whether performing prohibited work would alter entitlement to retroactive pay in specific circumstances [9] [10]. Executive-branch ethics and outside‑employment rules continue to apply during furloughs, meaning other legal constraints remain in force even while unpaid [3].
6. Appeals, challenges and practical defenses
If an employee believes they were misclassified or disciplined improperly for actions around a shutdown, available remedies include administrative appeal routes and, in limited circumstances, Merit Systems Protection Board review or prohibited personnel-practice challenges — agencies must follow required procedures when designating excepted versus non-excepted functions and issuing furlough notices [11] [6]. Legal challenge strategies and outcomes can vary by agency and case facts; the cited materials encourage consulting agency counsel and ethics officials [6] [10].
7. Bottom line and reporting limits
The clear, repeated guidance: furloughed employees must not perform their regular work and agencies may not accept voluntary services; if they do, agencies typically respond with administrative discipline, AWOL designations, and personnel actions under civil‑service rules, and the statutory Antideficiency Act underpins the prohibition [1] [4] [2]. The available public guidance does not comprehensively specify when an agency would pursue criminal charges or whether performing prohibited work automatically affects retroactive pay entitlements, so those outcomes depend on agency decisions and broader legal analysis not detailed in the cited materials [9] [6].