Daily Labor Report ®

Long Wait Likely for Fed Workers Suing Over Shutdown Pay

Jan. 18, 2019, 11:30 AM

Federal workers suing the government over its failure to pay them during the shutdown shouldn’t hold their breath waiting for damage awards. That’s assuming they win.

Some 25,000 federal employees who successfully challenged the government for violating federal wage law by not paying them during the 16-day shutdown in 2013 are still waiting for their money more than five years later. That case looms as a lesson in just how long lawsuits over pay and damages can drag on.

Several groups of federal workers affected by the current shutdown argue they should get damages under the Fair Labor Standards Act for not being paid on time. That’s on top of the back wages they will receive once the shutdown ends. President Donald Trump already signed legislation to provide back pay to workers once the shutdown is over.

Under the FLSA, employees can receive damages equal to the minimum wage for all hours in which they didn’t get paid on time, plus time-and-a-half for any missed overtime payments.

There’s no reason to expect that plaintiffs alleging FLSA violations during the weeks-long shutdown “won’t get the exact same relief” provided to the plaintiffs in the 2013 lawsuit, attorney Michael Kator told Bloomberg Law.

Still, “under the best of cases, these types of lawsuits take years to resolve,” Kator said. He is with Kator, Parks, Weiser & Harris, PLLC, in Washington.

It was more than four years after the 2013 shutdown that the U.S. Court of Federal Claims ruled in the employees’ favor on their FLSA claims.

Plaintiffs then were awarded damages for five days of work for which they weren’t paid on a timely basis, according to Heidi Burakiewicz, an attorney with Kalijarvi, Chuzi, Newman & Fitch, P.C., in Washington who represented workers during the 2013 shutdown. Full payment of those damages has yet to be completed, however.

Damages for First Missed Paycheck

With the first federal paycheck missed earlier this month, each plaintiff in the current shutdown dispute likely would get at least $580 in damages if they prevail in court, said Burakiewicz, who again is representing workers suing the government for having to work without pay. The federal minimum wage is $7.25 per hour, and employees affected by this shutdown have now missed a paycheck for an entire 80-hour, two-week pay period, she explained.

That puts the potential total cost to the government at $278 million, if you assume all those now working without pay would get $580 in damages for missing that first paycheck, Burakiewicz said.

It’s not clear, though, how many of the employees will opt to join the various back-pay lawsuits pending against the government. 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.

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

The IRS said it will call about 45,000 furloughed employees back to work to issue tax refunds. The State Department also is calling back employees. Any of these and other workers who meet the job and income criteria for the FLSA would be able to join the pending lawsuits if the government misses paychecks for work they’ve performed.

The Department of Justice, which is responsible for calculating the amounts owed, didn’t respond to requests for comment. The DOJ is among the agencies affected by the partial government shutdown that began Dec. 22.

Atypical Lawsuits?

The FLSA lawsuits based on the current and previous government shutdowns are somewhat atypical, management-side attorney Marty Heller told Bloomberg Law.

“There are so few cases in the real world that involve a complete failure to pay” employees on time, he said. “A more common scenario is an employee who is working off the clock” because their manager made them report fewer hours than they actually worked, said Heller, an attorney in Fisher Phillips’ Atlanta office.

Even though the government didn’t prevail in the FLSA litigation based on the 2013 shutdown, people shouldn’t assume the same will be true this time, Heller said. Attorneys for the government may have made adjustments not only in their presentation of the case but also in their preparations for the shutdown that might yield a different result, he said.

If affected workers in the current shutdown do prevail, monetary awards should get to them faster this time, Kator said. But this is of “little comfort” to an employee who’s having trouble paying a mortgage because of missed paychecks.

Kator represents a separate group of plaintiffs who alleged Jan. 9 that threatening workers with discipline if they don’t work without pay amounts to “involuntary servitude” in violation of the 13th Amendment.

The U.S. District Court for the District of Columbia Jan. 15 rejected arguments that workers required immediate relief from the ongoing shutdown. The court called for a new hearing Jan. 31 to consider arguments for longer-term relief.

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

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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