As unpaid federal workers struggle with tough financial choices during the shutdown, the American Federation of Government Employees has decided to bring a lawsuit against the Trump administration.
It’s unclear when the shutdown, which has now entered its 13th day, will end, as the president and Congress remain at odds over funding for a wall on the U.S.-Mexico border.
The federal employees union and a D.C.-based law firm, Kalijarvi, Chuzi, Newman & Fitch filed a lawsuit on Monday, arguing that it is illegal under the Fair Labor Standards Act to make federal employees work without pay. In its complaint, the union says the Trump administration’s violation of the Fair Labor Standards Act is “willful, and in conscious or reckless disregard of the requirements” of the the law.
The lawsuit is focusing on workers considered “essential,” which the Office of Personnel Management considers “performing emergency work involving the safety of human life or the protection of property or performing certain other types of excepted work.”
This classification includes more than 400,000 workers who still have to come to work, but aren’t getting paid. These workers include most of the U.S. Customs and Border Control agency, agents of the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA), and federal law enforcement and correction officers.
The two plaintiffs named in the complaint are Justin Tarovisky and Grayson Sharp, corrections officers. This is the first legal action related to the shutdown.
Zachary R. Henige, attorney at Kalijarvi, Chuzi, Newman & Fitch, P.C., said that the firm will be seeking the same relief for workers as it did during the 2013 shutdown, when the firm said workers should receive double the pay owed to them, in addition to being paid back retroactively for the hours during the shutdown when they worked and didn’t get their regular paychecks.
“Under the Fair Labor Standards Act, if workers aren’t paid at least the minimum wage and their overtime pay on the regularly scheduled payday they’re entitled to liquidated damages, so that’s the double pay and we would be seeking the same here,” Henige said. “If they did finally plan to getting around to paying these folks during the time they worked and weren’t paid, and I assume the government eventually will pay these folks for the time they’ve worked, the liquidated damages under the FLSA accounts for the expectation that employees have in trying to pay their bills, whatever it is in their life that they need to get paid. It could be their rent and mortgage, it could be groceries, putting gas in their car to get to work because they’re still working, and paying for childcare. That is both a deterrent and to make up for that fact, that they’re due the liquidated damages.”
In 2017, a federal judge ruled that the government had to compensate 25,000 federal employees for damages due to the 2013 shutdown because it was a violation of the Fair Labor Standards Act to make workers do their jobs during the funding lapse. Five Bureau of Prison employees were involved in the original suit. Since this was a recent ruling, even though the lawsuit had been filed years earlier, not all of those employees have received their money yet, but Henige said he’s confident that things will go differently this time around.
“I want to believe we’re getting closer to the end stages of [ensuring workers receive damages],” Henige said. “I would hope that anything related to this lawsuit would move a little more expeditiously because we have that law on the books in the same court saying that the employees are due to be paid on their regularly scheduled payday. Some of the litigation on the front end that happened in 2013, we’d hopefully be able to bypass any delay and get right down to ‘the employees are due money and the court says they are under that previous litigation’ and that it would really be a matter this time around of finding out who wasn’t paid and who was actually getting the money.”
Last week, the Office of Personnel Management (OPM) released a set of sample letters for federal workers who may have to make tough financial decisions during the shutdown. OPM advised they send out similar letters to creditors, mortgage companies, and landlords.
One letter advised workers to tell their landlords they can provide maintenance work in place of rent during the shutdown. It read:
“I will keep in touch with you to keep you informed about my income status and would like to discuss with you the possibility of trading my services to perform maintenance (e.g. painting, carpentry work) in exchange for partial rent payments.”
As noted earlier, many of these workers are already working full-time jobs without pay, and this letter suggests they work in addition to their full-time jobs.
OPM later said it inadvertently shared a letter that was from the 2013 shutdown, which lasted 16 days. The letter to the landlord is no longer available online.
“Although most federal employees have yet to miss a paycheck, OPM recognizes that many employees are concerned about the financial implications of a continued lapse,” OPM said in a statement to The Washington Post.
Chris, an employee at the Transportation Security Administration (TSA), whose last name has been withheld, told ThinkProgress last week that he was concerned that if the shutdown continued for much longer, he might have to take out a loan or cancel upcoming travel. Chris, who is helping his dad with his mortgage, said the bills would start mounting very quickly if the shutdown lasts longer than two weeks, as it is expected to.
On Wednesday, President Trump met with Democrats. According to a White House official who spoke with CNN, Democrats did not indicate they would go beyond $1.3 billion in funding for border security if Trump signed a short-term extension. The official reportedly said, “This is going to go on for a while.”
In the meantime, workers are waiting for the funding lapse to end so that they can make rent, student loan, and child care payments.
Henige said of plaintiffs, “They felt it was important enough to push back, get their names out there, and say the type of work we do, we care about the mission of this agency, we care about being public servants, and to not get paid is just not right.”