What is an excepted federal employee and which jobs qualify?
Executive summary
An “excepted” federal employee can mean two related things: (A) a worker appointed to the excepted service — jobs that are not in the competitive service or Senior Executive Service and whose hiring rules differ (for example, attorneys and some Veterans Recruitment Appointment hires) [1] [2]; and (B) an employee designated to continue working during a lapse in appropriations (“excepted” from furlough), who must work without pay during the shutdown but is generally entitled to retroactive pay once funding resumes [3] [4]. Agencies use statutes, OPM authority, and regulations (5 U.S.C. §2103; 5 CFR Part 213) to determine which positions fit the excepted service and which duties are excepted during shutdowns [5] [6].
1. What “excepted” means in hiring: a parallel personnel system
The excepted service is the statutory category for executive-branch positions that are specifically excluded from the competitive service by law, the President, or OPM; excepted-service positions are not in the competitive service or the Senior Executive Service, and agencies with excepted authority set their own qualification and appointment rules [5] [2]. OPM guidance and agency directives explain multiple paths into the excepted service — e.g., Veterans Recruitment Appointment, attorney authorities, and agency-specific schedules — and OPM and CFR sections govern those authorities [1] [7].
2. What “excepted” means in a shutdown: who must keep working
During funding lapses, agencies identify “excepted” work and employees whose duties are necessary to protect life and property or to perform other statutorily required functions; those employees must keep working even if Congress has not appropriated funds, and historically they perform work without pay until retroactive pay is authorized [3] [4]. OPM memos and agency instructions direct agencies how to designate excepted duties (for example, processing time-sensitive filings) and instruct payroll and CHCO offices on retroactive pay procedures after the lapse [3] [4].
3. Which jobs typically qualify — hiring-exception examples
Some jobs are excepted across-the-board by statute or OPM: attorneys and certain foreign-service and legislative-branch jobs are commonly listed as excepted; large agencies (TSA, FAA) may be mostly excepted by agency-wide authority; agencies may also use schedules (A, B, C, D and newer schedules like Schedule Policy/Career) to except specific positions for operational or policy reasons [1] [8] [7]. Governmentwide and agency-specific listings in 5 CFR Part 213 enumerate many authorities and schedules used to create excepted appointments [5].
4. Which jobs typically qualify — shutdown-exception examples
Operational “excepted” during a lapse are those that must continue to prevent imminent harm, maintain essential functions, or meet statutory deadlines — e.g., air-traffic control, national security functions, certain law enforcement, social-security payments processing in some contexts, or time-sensitive legal filings; OPM guidance gives examples like processing certifications or terminations to meet deadlines [3] [4]. Independent sources and state guidance show that excepted employees required to work during a shutdown are not eligible for unemployment insurance in that period because they are not “unemployed” [9].
5. Political and administrative fights over who is “excepted”
Excepted-service classifications can be politically consequential. Recent executive orders and rulemaking have expanded or redefined schedules (e.g., Schedule Policy/Career / formerly Schedule F) to move policy-related positions into an excepted category that raises concerns about removing civil-service protections; reporting shows OPM rules and White House orders explicitly base exceptions on confidential, policy-determining, policy-making, or policy-advocating character [6] [10]. Critics warn such reclassification can strip career protections and be used to reshape the workforce; supporters frame it as needed accountability [10] [11].
6. Pay and legal protections: practical consequences for employees
Employees excepted to work during a shutdown generally must work without immediate pay but are usually entitled to retroactive pay after appropriations resume under 31 U.S.C. 1341(c), per OPM guidance [4]. Conversely, being appointed under an excepted hiring authority can change an appointee’s procedural protections, bargaining implications, and eligibility for some benefits, depending on the specific schedule or statute [7] [5].
7. Limits of available reporting and where to look next
The sources describe the legal definitions (5 U.S.C., 5 CFR Part 213), OPM guidance on shutdown administration and retroactive pay, examples of excepted hiring authorities, and contemporary controversy around new excepted schedules [5] [4] [1] [10] [6]. Available sources do not list an exhaustive job-by-job roster of excepted positions across agencies; agencies publish their own excepted-duty lists and OPM posts schedule authorities that identify which positions are excepted (not found in current reporting).
If you want, I can pull the specific OPM schedules, agency lists (TSA, FAA, DOJ attorneys, etc.), or the relevant CFR and statute sections cited here for deeper, job-by-job detail.