The 2013 case set the precedent that lawsuits during the current shutdown hope to follow.
More than 25,000 individuals have been waiting for more than five years for monetary damages a court said they deserve because the federal government violated the law when it forced them to work without immediate pay during the 2013 shutdown. The government and plaintiffs were finally getting close to resolving and disbursing the payments, but now the former and current federal employees will have to wait a little longer.
Why? The Justice Department attorneys and many of the other employees working on processing the payments are now furloughed, sent home without pay during yet another government shutdown.
The 2013 employees are awaiting the payments a federal judge awarded in 2017; meanwhile, two new lawsuits making similar allegations are now before a federal court in response to the current shuttering of some agencies.
The U.S. Court of Federal Claims ruled in February 2017 that the government must pay liquidated damages “in an amount equal to the minimum and overtime wages” that employees forced to work during the shutdown without immediate pay did not receive in a timely manner. More than 200,000 employees who worked during the shutdown because their salaries were paid from non-annually appropriated accounts or because their jobs protected life or property were eligible to join the case. While their pay was guaranteed, they did not receive it until the shutdown concluded after 16 days.
The ongoing delay, according to Zachary Henige, an attorney with Kalijarvi, Chuzi, Newman and Fitch, which is representing the plaintiffs in the case, is because the Justice Department is still fighting over the eligibility of a few of the plaintiffs to join the collective action suit. The two sides have also struggled in some cases to receive the requisite documentation from agencies. The delays have occurred despite the Justice Department being cooperative and cordial, Henige said.
The court initially ruled in 2014 the government had violated the 1938 Fair Labor Standards Act during the shutdown when it delayed payments to the 1.2 million federal workers who were required to report during the shutdown. The plaintiffs will likely receive an amount in the neighborhood of $7.25—the federal minimum wage—times the number of hours worked between Oct. 1 and Oct. 5, 2013, the period in which paychecks were delayed. This amounts to $290 for employees who worked eight-hour days, plus any overtime they are due.
After the court’s 2014 ruling, federal agencies were forced to notify hundreds of thousands of federal workers of their eligibility to join the suit. FLSA-exempt workers, such as teachers, nurses and high-level managers, and those who earned more than $290 on Sept. 29 (a Sunday) and Sept. 30 were not entitled to join the case. Those who worked those two days but earned less than that total will see their payout decreased.
Justice and the plaintiffs' attorneys have continued to update the court on a monthly basis on their progress in readying the payments. Henige would not estimate when the current and former federal employees could expect their damages, but did say the two sides were getting close and “the end is in sight.”
In a bitter twist of fate, however, the Justice Department attorneys working on the shutdown lawsuit case are currently furloughed—as are many of the human resources professionals tracking down payroll records—leading to further delays in the payouts.
The two largest federal employee unions, the American Federation of Government Employees and the National Treasury Employees Union, have filed separate lawsuits in recent days in response to the ongoing shutdown. The new lawsuits are also based on alleged FLSA violations. About 500,000 employees are reporting to work every day with only the promise of back pay, most of whom will miss paychecks for the first time on Friday.
AFGE has retained the same firm to pursue its new case, which again has named Bureau of Prisons employees as lead plaintiffs. Henige predicted a “great likelihood of success” given the precedent from the 2013 suit. He expected a much quicker decision this time around, noting the suit was filed in the same court and has initially been assigned to the same judge, Patricia Campbell-Smith.
Henige predicted his firm would be able to “move this along a little faster.” Impacted employees will likely be in line for a bigger payout this time around, assuming the shutdown is not resolved before employees miss their checks on Friday, as the last pay period ended just before the shutdown began.