TSA employees are among those working without pay.

TSA employees are among those working without pay. David J. Phillip / AP

Saturday, the Shutdown Becomes the Longest Ever. And Illegal.

According to court precedent, the government is about to violate federal law with its own employees.

The federal government is poised to drag into its longest ever closure on Saturday, when the partial shutdown will enter its 22nd day.

The shutdown is set to exceed the previous record-holder, the 21-day shutdown in 1995-1996. It also marked a key day for the more than 800,000 federal employees impacted by the appropriations lapse. On Friday, most of them did not receive their scheduled paychecks for the first time.

The missed pay brought the shutdown further into new territory: it is now illegal. That is according to a precedent set by a federal court after the 16-day 2013 shutdown, in reference to many of the “excepted” or “exempted” employees who are forced to work during the lapse with only the promise of retroactive pay once their agencies reopen. A group of those workers sued the government after that lapse; 25,000 workers ultimately signed onto that lawsuit.

In 2014, Patricia Campbell-Brown, a judge in the U.S. Court of Federal Claims, ruled the government violated the 1938 Fair Labor Standards Act when employees worked without receiving immediate pay. While the government sought to argue the delay in payment was not “egregious,” the judge said a violation occurred under the FLSA as soon as the checks were not delivered on time. She also rejected the government’s argument that any financial hardship occurred only because of federal workers’ “poor financial management decisions.”

“The court notes that at least some government employees, who may be plaintiffs herein, were working at the GS-04 or GS-05 levels, and had annual salaries starting around $28,000 in 2013,” Campbell-Brown wrote in her ruling. “Such salaries leave families a narrow margin, particularly when—as plaintiffs in this action have described—child care expenses continue and unexpected health-related expenses arise.”

Based on that precedent, the government again violated the law on Friday when it did not pay the roughly 500,000 employees who are working during the current shutdown. That has led to multiple groups again suing the government, making the same allegations of FLSA violations. Zachary Henige, an attorney with Kalijarvi, Chuzi, Newman and Fitch, which is representing the plaintiffs in one of those cases, 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.

In 2017, Campbell-Smith issued a follow-up ruling that the employees that joined the collective action lawsuit were entitled to liquidated damages from the government. On top of the back pay they have already received, the government will have to pay out additional compensation to those 25,000 individuals. The plaintiffs will 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.

Those individuals are still waiting for those payments, a process that has been further slowed because many of the Justice Department attorneys and human resources professionals working on the case are currently furloughed. Impacted employees will likely be in line for a bigger payout this time around, depending how much longer the shutdown lasts. 

Not all feds working during the shutdown will be entitled to damages. FLSA-exempt workers, such as teachers, nurses and high-level managers are not eligible to join the case.

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