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How were federal employees classified as excepted or non-excepted during the 2025 shutdown?
Executive Summary
Federal employees in the 2025 shutdown were classified as excepted (required to work) or non-excepted/furloughed (not permitted to work) based on legal limits in the Antideficiency Act, agency contingency plans, and Office of Management and Budget (OMB) and Office of Personnel Management (OPM) guidance; employees funded outside annual appropriations were handled separately and often continued to work and be paid [1] [2] [3]. Agencies applied these authorities through legal counsel and senior managers drawing on preexisting contingency schedules and two-year plan updates, while the Government Employee Fair Treatment Act of 2019 frames pay entitlements for furloughed staff and prompted disputes over retroactive pay during the 2025 lapse [4] [5] [6].
1. How the Law Framed the Choice: Antideficiency Act as the Gatekeeper
Classification during the 2025 lapse started with the Antideficiency Act’s prohibition on incurring obligations without appropriations, which creates only narrow exceptions for work essential to safety of life or property or specifically authorized by statute. Agencies relied on DOJ interpretations and OMB direction to identify which duties fit those statutory exceptions, meaning that being “excepted” was less a job title and more a legal determination tied to mission-critical activities. OMB special instructions reiterated that excepted work must be legally defensible, and OPM guidance instructed agencies to consult legal counsel to make those determinations, so final designations were made at agency level using uniform legal criteria but applied to agency-specific functions [1] [4] [2].
2. Agency Contingency Plans: The Practical Playbook for Who Works
Federal agencies classified employees largely by applying their contingency plans—documents updated every two years and sometimes more frequently—that list which functions continue during a lapse. Those plans separate three practical groups: staff whose salaries are financed outside annual appropriations and thus continue normal pay and leave; furloughed employees who may only return to pay retroactively after the lapse; and excepted employees who continue to perform work without immediate pay [3] [2]. The proportion in each bucket varied markedly by agency because of mission and funding structures; the Department of the Treasury’s 2025 plan, for example, showed a dramatically smaller furlough share than prior years owing to alternate funding streams, illustrating how contingency plans materially affect classification outcomes [3].
3. Who Decides and How Transparent Was It? Agency Counsel and Senior Managers in the Lead
In practice, agency legal counsels and senior managers applied OMB and OPM guidance and DOJ analyses to make on-the-ground decisions about who was excepted. OPM told employees to consult human resources for status while emphasizing that agencies bear the responsibility for the determinations, not individual workers, and that legal defensibility is paramount. That decentralized decision-making produced variation across agencies and created uncertainty about overall furlough counts; OMB did not provide a consolidated estimate of furloughed workers, leaving public understanding fragmented and fueling disputes over which officials or roles were rightly designated as excepted or furloughed [2] [4] [5].
4. Money, Politics, and Payback: The Fair Treatment Act and the Pay Controversy
The Government Employee Fair Treatment Act of 2019 guarantees retroactive pay for furloughed employees once Congress appropriates funds, and that law shaped expectations during the 2025 lapse. Nevertheless, political tension arose when administration messaging suggested possible departures from that framework, prompting questions about compliance and timing of back pay—an issue that is legal, administrative, and political. News analyses flagged contrasting positions between administration statements and the 2019 statute, while guidance documents reiterated that excepted employees might work without immediate pay and non-excepted employees are furloughed without pay but typically receive retroactive compensation under existing law, spotlighting the intersection of statutory rights, agency practice, and political statements [5] [6] [1].
5. What Remains Missing and Why It Matters Going Forward
Although the legal and procedural architecture for classification is clear—Antideficiency Act plus OMB/OPM/DOJ guidance and agency contingency plans—the exact numbers and granular justifications for many 2025 designations remained opaque because agencies applied guidance locally and OMB did not publish a consolidated tally. That opacity complicates oversight, makes cross-agency comparisons difficult, and leaves workers uncertain during lags, while differences in funding streams (e.g., special appropriations or statutory authorities) further complicate who gets paid during a lapse. The result is a predictable legal framework applied in a variable, sometimes politically charged operational environment, underscoring the need for clearer reporting and more centralized transparency in future lapses [2] [7] [3].