Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Government employee unions’ newest suit challenges alleged plans for mass firings of federal employees during shutdown, (Oct 1, 2025)

By Brandi O. Brown, J.D.

Not only would the layoffs be unlawful, according to the unions, but the act of carrying out the RIFs would not constitute a permitted or “excepted” function that could continue during a shutdown.

Yesterday, the American Federation of Government Employees (AFGE) and the American Federation of State, County and Municipal Employees (AFSCME) filed a lawsuit challenging the Trump administration’s statements regarding en masse firing of federal employees in the event of a government shutdown. The shutdown started today.

Filed in California federal court, the unions’ lawsuit alleges that the Office of Management and Budget, through its Director Russ Vought, violated the law by threatening mass firing of federal workers during a shutdown. It also alleges that the Office of Personnel Management and its Director Scott Kupor issued unlawful and unprecedented instructions that federal employees could perform work during the federal government shutdown in order to carry out mass RIFs.

Unprecedented and unlawful. The unions contend that the administration’s plan to fire federal employees during a shutdown is unprecedented and is an unlawful abuse of power designed to punish workers and pressure Congress. When shutdowns have occurred in the past, they allege, and pursuant to federal law, federal employees have been assigned either as “excepted” employees, who continue working during the shutdown but are not paid until appropriations resume, or “non-excepted” employees who are furloughed and receive back pay after a shutdown ends.

They argue that the OMB memorandum breaks from this long-standing framework, directing agencies to issue mass RIF notices that could strip employees of back pay rights, violate agencies’ statutory duties, and even target workers whose jobs are essential to protecting life and property during a shutdown. The content of that memo and the threat of massive layoffs was confirmed by the White House press secretary, they allege, who responded, when asked whether there would be mass layoffs, “There will be if Democrats don’t keep the government open.”

Carrying out a RIF is not permitted. Moreover, they argue that the directive itself directs federal employees to engage in illegal activity because it instructs them to work during the shutdown in order to effectuate the RIFs, but “carrying out RIFs is plainly not a permitted (or “excepted”) function that can lawfully continue during a shutdown.”

“Announcing plans to fire potentially tens of thousands of federal employees simply because Congress and the administration are at odds on funding the government past the end of the fiscal year is not only illegal—it’s immoral and unconscionable,” said AFGE National President Everett Kelley.

The lawsuit was filed in the Northern District of California; the case is No. 3:25-cv-08302.

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