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Washington D.C. – The number of IRS employees required to work without pay will balloon to more than 46,000 when the IRS ends the furlough for more than half of its workforce in order to get ready for the tax filing season.

The National Treasury Employees Union represents about 70,000 IRS workers around the country, most of whom have been furloughed since Dec. 22, without pay.

The mass call back of IRS workers illustrates why NTEU’s lawsuit challenging the administration’s expanding effort to spend money that Congress has not appropriated is timely. NTEU alleges that the executive branch can’t continue to force more and more employees to show up in exchange only for an IOU.

The lawsuit, filed Jan. 9, alleges that the Antideficiency Act violates the Appropriations Clause of the Constitution, which does not allow the government to obligate funds that have not been appropriated by Congress. It is a dramatic constitutional challenge that would force elected officials to make the hard decisions and compromises that are necessary to keep the federal government open and its workforce paid.

“There is no doubt the IRS needs to get ready for the 2019 filing season that starts Jan. 28, and IRS employees want to work. But the hard, cold reality is that they’ve already missed a paycheck and soon they’ll be asked to work for free for as long as the shutdown lasts,” said NTEU National President Tony Reardon.

Under the IRS’ non-filing season shutdown plan that has been in place for more than three weeks, 88 percent of its 80,000 employees were sent home without pay. Under the new filing season plan released today, 46,052 employees will be back on the job starting this week. Under the new plan, 42.6 percent of the workforce remains furloughed.

The IRS is calling back tens of thousands of employees after the administration reversed previous precedent and decided that tax refunds can be processed during a government shutdown. The result is an even larger number of employees required to work on the promise they will be paid later.

“I’m worried whether these employees will have the money to put gas in their car to get to work. I’m worried that highly trained IRS employees will consider quitting so they can get a job that actually comes with a paycheck,” Reardon said.

Right now, one in five IRS employees are eligible for retirement and that number increases significantly in the next five years. “Who will replace these employees after seeing how poorly they are treated by the federal government as their employer?” Reardon asked.

NTEU is also challenging the administration’s ability to require employees to work during the shutdown even if their jobs are not related to protecting human life and property.

A federal judge on Tuesday denied NTEU’s request for an immediate temporary restraining order that the administration stop spending money that Congress has not yet appropriated. The next hearing in the case for a preliminary injunction is scheduled for Jan. 31.

“While we are disappointed that the judge did not take immediate action, we look forward to continuing our argument that the administration cannot require more and more employees to report to work without pay,” Reardon said.

“This shutdown cannot go on. The government has important services to deliver and it needs its full workforce back on the job, with pay, as soon as possible,” Reardon said.

NTEU represents 150,000 employees at 33 federal agencies and departments.