Daily Labor Report®

Lawsuits to Continue Even if Shutdown Ends, Attorneys Say

Jan. 25, 2019, 8:39 PM

Lawsuits against the federal government for not paying employees on time and for requiring them to work without pay will go forward, even with a deal to reopen the government through Feb. 15.

The deal, announced by President Donald Trump on Jan. 25, “doesn’t affect our case at all,” Heidi Burakiewicz, an attorney with Kalijarvi, Chuzi, Newman & Fitch P.C., in Washington, told Bloomberg Law. That’s because the plaintiffs are seeking damages under the Fair Labor Standards Act for pay they’ve already missed, she said.

“The violation happens on payday, when the employees don’t get paid on time,” Burakiewicz said. “The violation’s already occurred” for the plaintiffs, who have missed a paycheck and will likely miss another because of the time needed to process payroll, even if the shutdown ends immediately, she said.

Plaintiffs in a similar lawsuit after the 16-day shutdown in October 2013 didn’t file their complaint until after the shutdown ended, Burakiewicz said. She represented a group of about 25,000 plaintiffs in that FLSA lawsuit, which resulted in damages being awarded by the U.S. Court of Federal Claims in February 2017. The plaintiffs are still waiting for damages to be calculated.

It’s not clear how many employees ultimately will opt to join the various back-pay lawsuits currently pending against the government, Burakiewicz said. Plaintiffs in class actions under the FLSA are required to opt in, unlike some other types of class actions where similarly situated people are automatically owed relief, she said.

Constitutional Lawsuit to ‘Go Forward’

Mike Kator, who represents a separate group of plaintiffs seeking relief on constitutional grounds before the U.S. District Court for the District of Columbia, said a temporary end to the shutdown could affect the plaintiffs’ request for a preliminary injunction, but not the underlying case.

The lawsuit filed on behalf of those clients argues that threatening workers with discipline if they don’t work without pay amounts to “involuntary servitude” in violation of the 13th Amendment.

“We’re going to continue to go forward” in asking the court to declare that it’s unconstitutional to require people to work without pay, said Kator, who is with Kator, Parks, Weiser & Harris PLLC, in Washington. The goal is to ensure that no one goes without pay in future shutdowns, he said.

About 420,000 workers at the departments of Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior, Justice, State, Transportation, Treasury, and other agencies have been working without pay since Dec. 22 because they’re considered “essential.” Another 380,000 workers have been furloughed or told not to report to work until the shutdown is resolved, since that time.

Temporary Relief From Shutdown?

The plaintiffs’ request for a preliminary injunction—a part of the lawsuit seeking temporary relief from not being paid because of the government shutdown—could be affected by the reopening of the government, Kator said.

“Our request for preliminary injunctive relief becomes irrelevant” if federal workers are again being paid, he said. But this doesn’t mean that the lawsuit ends, Kator said.

Judge Richard Leon called for a Jan. 31 hearing on the preliminary injunction. “I expect we will hear from the judge before Jan. 31” with further instructions if the government reopens, Kator said.

The deal announced by Trump in any event could end up doing nothing more than providing federal employees and the public with three weeks of relief from the shutdown, Kator said. That’s because Congress and the president might not be able to agree on a longer-term spending deal by Feb. 15, he said.

“We have to see what actually happens. It’s possible we will be in the exact same place in three weeks,” Kator said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Cynthia Harasty at charasty@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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