Can Federal Employees Sue the Government for Shutting Down?

Currently FLSA applies to the federal government too

It’s not quite what it sounds like though, so let me explain. As you know, the federal government has been shut down since December 22, because our President and Congress can’t agree on a budget. But not all government agencies are entirely shut down. For example, the Transportation Safety Administration (TSA)– among other agencies– has required its “essential” workers to, well, work.
 

That may sound reasonable, but there’s a problem with that. You see, those and other “essential” federal workers either aren’t getting paid or are receiving pay below the minimum wage while the government is shut down.

Federal workers and unions on behalf of workers have now sued the President and the federal government. One lawsuit includes as its plaintiffs 10 TSA workers employed as federal Air Marshals (stationed on flights to prevent air terrorism) on behalf of themselves and 420,000 other “essential” federal worker have sued the federal government in the D.C. Court of Claims in an effort to compel the government to pay them. Can they do that? Will they succeed?

Read on and we’ll take a look at this interesting issue.

Believe it or not, the unions and employees are suing the federal government under the Fair Labor Standards Act (FLSA). How might it work here? Let’s review: The general rule under the FLSA is that employers must pay their employees in cash or by a negotiable instrument (think check or direct deposit, NOT tokens, IOU vouchers, gift cards, store credit, etc.). The employee must receive his/her wages “free and clear”. In other words, an employer cannot require any kick back of wages. Most importantly for our discussion, however, the FLSA requires “prompt” payment of wages, on the regular day for the pay period for in which they worked those hours. You begin to see where this is going, right?

One attorney representing federal air marshals argues as follows: “The law says if you don’t pay your employee on time — even if you make them whole with back pay — you still owe them liquidated damages”. The FLSA provides for damages in the amount of the unpaid straight time wage (which must be at least equal to minimum wage) plus overtime, if applicable, plus an equal amount in liquidated damages. Oh there’s also attorneys’ fees to the prevailing party. That means that as long as at least one employee can show that even one penny of wages is owed, the employer, in this case the federal government, is on the hook for the employees’ attorneys’ fees.

As of now, a federal judge refused to compel the federal government to pay federal workers compelled to work during the shutdown. I’m guessing that ruling either has been or will be appealed.

The AFGE, which has filed one of the lawsuits, has called for all such government employees to go on strike or stage a sick-out.  What might the government argue? During a prior shutdown it argued that federal law prevented it from spending money not allocated by Congress. A U.S. Court of Claims judge disagreed with that argument in 2014, and in 2017 awarded the workers double damages in back pay. They have yet to collect that back pay (but significantly there is no indication that the government appealed the ruling either).

The National Treasury Employees’ Union sued the government in an attempt to excuse federal employees from working. On January 15, a D.C. judge refused to excuse the employees. In his bench ruling he apparently cited no statutory basis but said it would be “profoundly irresponsible” to grant the relief the workers requested, that “At best it would create chaos and confusion…At worst it could be catastrophic . . . I’m not going to put people’s lives at risk.” NOTE: TSA and FAA workers cannot strike.

So, it appears that the FLSA as of now does apply to the federal government, and may even apply during a shutdown. What that really means as a practical matter for the federal workers, is another question, however.

Meanwhile, for those employers other than the federal government: Pay your employees’ wages promptly on the pay day following the pay period in which they worked or you can end up paying the unpaid wages, + liquidated damages in an equal amount (i.e. double damages) plus the employee(s)’ legal fees.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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This article first appeared here.

Author Bio

Janette Levey Frisch is an Employment/HR Attorney and the Founder of The EmpLAWyerologist Firm. Visit www.theemplawyerologist.com Connect Janette Levey Frisch Follow @JLeveyFrisch