Litigation from previous shutdowns required the government to pay damages, although payouts took years.
The nation’s largest federal employee union on Monday filed a lawsuit against the Trump administration over employees being forced to work without pay during the partial government shutdown that began last month.
Led by two Bureau of Prisons employees, the American Federation of Government Employees and a Washington, D.C., employment law firm filed class action litigation in the U.S. Court of Federal Claims on behalf of all “essential” federal workers, who are required by their agencies to report to their jobs despite a lapse in appropriations. Excepted employees are not paid for their work until after the government reopens, though they are guaranteed back pay at that point.
The lawsuit argues the practice of requiring an employee to work without pay violates the Fair Labor Standards Act, citing periods of overtime the two employees worked after the shutdown began Dec. 22.
“These excepted employees were not paid for overtime work performed after the commencement of the shutdown on their regularly scheduled payday,” the complaint stated. “[Plaintiffs] seek liquidated damages under the FLSA for themselves and all other FLSA non-exempt excepted employees in the amount of any overtime payments to which they were entitled on the scheduled payday.”
In a statement, AFGE National President J. David Cox said that federal employees must be made whole following the financial uncertainty caused by the partial government shutdown, which is approaching its third week with no end in sight.
“Our members put their lives on the line to keep our country safe,” he said. “Requiring them to work without pay is nothing short of inhumane. Positions that are considered 'essential' during a government shutdown are some of the most dangerous jobs in the federal government . . . Our nation’s heroes, AFGE members and their families deserve the decency of knowing when their next paycheck is coming and that they will be paid for their work.”
Approximately 500,000 federal employees are currently working without pay under an excepted status, while an additional 340,000 are furloughed.
Similar lawsuits brought by excepted employees in previous shutdowns have been successful. In 2017, the U.S. Court of Federal Claims ordered the government to pay liquidated damages “in an amount equal to the minimum and overtime wages” that employees forced to work without pay did not receive in a timely manner.
But as of January 2018, tens of thousands of federal workers were still awaiting their payouts.