Federal Employees Challenge Working Without Pay During Government Shutdown

Challenge to Working Without Pay During Government Shutdown by Federal Workers Begins

In the midst of the longest federal government shutdown in American history, approximately 800,000 federal employees have been negatively impacted. Many of these workers have been deemed “non-essential” and have been furloughed (sent home without pay) until the government reopens. However, those employees that are deemed “essential” (think Border Patrol and Transportation Security Administration agents, and air traffic controllers) are required to work without pay. As the shutdown continues, President Trump has recalled approximately 46,000 previously-furloughed employees back to work, mostly from the Internal Revenue Service, the Food and Drug Administration, and the Federal Aviation Administration. More may be recalled in the coming days and weeks.

On Tuesday, January 15, 2018 Judge Robert Leon of the U.S. District Court for the District of Columbia refused requests from the National Treasury Employees Union and the National Air Traffic Controllers Association to grant temporary restraining orders that would compel the federal government to pay their employees during the shutdown. A hearing date has been set for January 31, 2019 for Judge Leon to hear arguments regarding the unions’ separate request for a preliminary injunction, while separate suits have been filed by other unions and federal employees under the Fair Labor Standards Act (“FLSA”), the 5th Amendment, and the 13th Amendment.

However, Judge Leon’s decision is seemingly at odds with prior precedent. The U.S. Federal Court of Claims in Martin v. U.S., 117 Fed. Cl. 611 (2013) which arose as a result of the 2013 federal government shutdown, held that under the FLSA, federal employees are entitled to on-time payment of least the minimum wage, and overtime, if applicable, for work performed without pay during a government shutdown. The court in this case also awarded liquidated damages to the affected employees.

As hundreds of thousands of federal employees face an uncertain future, it remains to be seen not only how the courts will ultimately rule on if or when they will be paid, but how the government shutdown itself will ultimately be resolved.

If you are a government employee that has been affected by the shutdown and has questions about your rights, please contact our office.