THE BLOG

Congress Hates Federal Employees So Much That Employees Who Volunteer for the Government During a Shutdown Can Go to Prison

09/27/2013 02:12 pm ET | Updated Nov 27, 2013

The federal government is on the verge of shutdown because the Republicans in the House of Representatives refuse to support any spending bill unless Obamacare is defunded.

This will be bad for a lot of people. But it will be uniquely bad for federal employees.

Unless a federal employee is deemed essential to protecting human life or property, he or she isn't allowed to go to work during a government shutdown.

In fact, it's a little worse than that. The law -- the Anti-Deficiency Act -- says that if a federal employee provides voluntary services when their salaries haven't been appropriated by Congress, it's a felony.

That's right: For a federal employee to check her work BlackBerry during a government shut down is a crime punishable by up to two years in a federal prison and a fine of $5,000.

A Congress that dislikes the federal government has a lot of ways to make it unpleasant to be a federal worker. One is, of course, by shutting the government down and forcing these public servants to worry about whether they'll make their mortgage payments.

More, Congress has created a number of federal crimes that largely apply only to federal employees. I've represented a number of federal employees who are under investigation. Things that a normal employee might do and get fired for -- like skip out of work and lie on a timesheet -- get investigated and prosecuted against federal employees. And, to make it worse, each agency has an Inspector General with agents in it who do nothing but investigate reports of wrongdoing involving the agency -- including by the people who work there.

The threat of prosecution for a federal employee who works, even a little, during a shutdown, is too real to be non-existent.

What's worse, the Anti-Deficiency Act requires that any time a federal employee performs voluntary work for the U.S. government during a shutdown, the head of that employee's agency has to report it. Immediately.

Specifically, the law requires that the agency head:

report immediately to the President and Congress all relevant facts and a statement of actions taken. A copy of each report shall also be transmitted to the Comptroller General on the same date the report is transmitted to the President and Congress.

It may be that there are few federal prosecutors -- who are federal employees, after all -- who want to bring a case against a federal employee who cared enough to email an idea about a project to a coworker. And it may be that few jurors would vote to convict a federal employee who willfully called her supervisor to talk about a problem that they would face after the shutdown ends (these juries would, for the most part, be in D.C., after all. If there's a jurisdiction sympathetic to federal workers this is it).

But, with this House of Representatives, the chance of oversight hearings on federal employees who volunteer during a shut down is significant. After all, it's a felony.

Probably the best part of the law that governs the way federal employees have to act during a shut down is the part that deals with punishments that aren't a crime.

If a federal employee violates this law -- by working for free for the federal government during a shutdown -- the law says that such a person can be disciplined. For example, they can be suspended from duty without pay.

Just like most federal workers are going to be on Tuesday if Congress can't pass a spending resolution.