Facing Renewed Threat, 20,000 Feds Are Still Suing Government Over Last Shutdown

Facing Renewed Threat, 20,000 Feds Are Still Suing Government Over Last Shutdown


As federal employees gear up for the possibility of another government shutdown, tens of thousands are still waiting for justice for the last one.

More than 20,000 individuals forced to work without pay during the 16-day shutdown in October 2013 have joined a collective action lawsuit against the government, alleging a violation of the 1938 Fair Labor Standards Act. Around 1.2 million feds reported to work during the appropriations lapse, because their salaries drew from non-annually appropriated accounts or because their jobs protected life or property. Those employees were promised retroactive pay from the outset of the shutdown, but only after the government reopened.

U.S. Court of Federal Claims Judge Patricia Campbell-Smith in 2014 denied the federal government’s motion to dismiss the lawsuit originally filed by five Bureau of Prisons employees. That ruling led to the court requiring agencies to notify hundreds of thousands of federal workers of their eligibility to join the suit.

Thousands have signed on since those notifications went out earlier this year, according to Heidi Burakiewicz, an attorney at the law firm Mehri & Skalet, which is representing the workers. More are still joining as the law firm has worked to resolve issues with agencies that struggled to get notifications out. Burakiewicz said she has heard from many eligible workers who did not initially sign up because they were skeptical the email was a phishing scam.

“Getting the word out to people is a challenge in this case,” she said.

On Monday, just three days before a new shutdown would begin, Burakiewicz said her firm will submit a filing with all the new plaintiffs who have joined the case. Plaintiffs are seeking compensation of $7.25 — the federal minimum wage — times the number of hours worked between Oct. 1 and Oct. 5, the period in which paychecks were delayed. This amounts to $290 for employees who worked eight-hour days, plus any overtime they are due.

Campbell-Smith, the federal judge, ruled last year the government was in violation of the FLSA when it delayed payments for hours worked in that period to most of the 1.2 million employees forced to report during the shutdown. Campbell-Smith rejected the workers’ claim that even employees designated as exempt by the FLSA — such as teachers, nurses and high-level managers — were entitled to damages. She also said employees who earned more than the weekly minimum wage of $290 from their paycheck by working that week before the shutdown — Sept. 29 (a Sunday) and Sept. 30 — were not treated in violation of labor laws.

Still, the government violated the FLSA for the vast majority of federal employees who worked during the shutdown, she ruled.

Burakiewicz expects the discovery phase of litigation to wrap up in October, perhaps as about 60 percent of federal employees are once again forced to do their jobs without pay. Upon the conclusion of that phase, the plaintiffs could motion for summary judgment. That process would require the court to rule whether the government owes liquidated damages — or financial compensation — without going to trial. It is a common step when there is no question of fact, Burakiewicz said, which could apply to this case since Campbell-Smith has already ruled the government violated federal law.

The attorney said it is “horrible” that two years later, Congress is putting feds through the same process for which they are currently seeking compensation.

“Their primary goal here is they want to sent a message to lawmakers: ‘You can’t make us work and not pay us on time,’” Burakiewicz said of the plaintiffs. “’This had a real impact on our lives,’” she added from their perspective, noting a “huge list” of ways delayed paychecks were detrimental.

“Lawmakers don’t seem to be concerned about the consequences to federal workers,” Burakiewicz said.

(Image via Pakhnyushchy/Shutterstock.com)

Author: AFGE Local 704

Representing over 900 bargaining unit employees working at the U.S. EPA Region 5 Offices in Chicago, Ann Arbor, MI and Westlake, OH.

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