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INSIGHT: Five Things to Know If You’re Working for Uncle Sam Without Pay

Jan. 30, 2019, 9:00 AM

President Trump announced Jan. 25 that the longest government shutdown in history had finally come to a close. While the shutdown may be over—at least for now—the lawsuits filed by federal workers will continue.

The partial shutdown affected approximately 800,000 federal employees and an additional 1.2 million contractors. Furloughed employees didn’t have to work, but they weren’t getting paid. Excepted employees were required to work without pay. And they could be disciplined if they didn’t report for work.

Federal employees can count on receiving back pay when the government reopens, but Congress and President Trump have yet to authorize the same relief for contractors.

So far, employees and unions have been unsuccessful in persuading federal judges to order the government to either reopen or to timely pay employees who were working for free. The good news is that employees may be able to recover damages beyond the back pay that has already been authorized.

Here are five things you should know about the shutdown.

1. Supplementing Your Income May Be Risky

If you are furloughed, you may be able to get a temporary job until the government reopens. However, depending on the nature of your permanent and temporary positions, taking a second job could put your federal employment at risk. Federal agencies have complicated ethics rules that may limit, or even prohibit, outside employment. (See e.g., 5 CFR § 2635, Subpart H) You could seek guidance from your agency’s ethics officials; however, they’re probably furloughed, too.

Even crowdfunding sites like GoFundMe may be off limits because donations would be considered gifts, which are also restricted by federal ethics rules. (See 5 CFR § 2635, Subpart B)

If you are an excepted employee or are otherwise not furloughed, you must go to work. Even though you aren’t getting a paycheck, you can be subject to discipline for failing to report.

2. Courts Have Declined to Order the Government to Pay Employees During the Shutdown

Litigation is already underway.

For example, the National Treasury Employees Union (NTEU) filed a lawsuit in the U.S. District Court for the District of Columbia on behalf of various government workers, including IRS employees who were recalled to process tax returns. NTEU alleges that requiring these “excepted” non-emergency employees to work without pay violates the U.S. Constitution.

Judge Richard J. Leon denied NTEU’s request for a temporary restraining order (TRO) to force the government to pay employees during the shutdown. A hearing is scheduled for Jan. 31.

3. However, Courts Have Shown Willingness to Award Damages After the Government Reopens

The district court’s decision on NTEU’s motion for a TRO is not necessarily indicative of the union’s ultimate chance of success. The court may rule in the union’s favor and award the employees damages.

In fact, legal decisions during prior shutdowns suggest that federal employees may be entitled to more than just their regular back pay when the government reopens.

4. Damages May Depend on Status Under the FLSA

Following the 2013 shutdown, federal employees sued for unpaid wages under various theories, including for violations of the Fair Labor Standards Act (FLSA). The end result was that employees who were exempt under the FLSA (i.e., typically salaried employees) were unable to recover damages for delayed payment. (Martin v. United States, 117 Fed. Cl. 611, 625 (2014))

On the other hand, non-exempt employees did recover damages for delayed payments. The U.S. Court of Federal Claims held that the FLSA requires timely payment and awarded non-exempt employees damages in addition to back pay equal to the amount of minimum wage and overtime rates that were not timely paid. (Martin v. United States, 130 Fed. Cl. 578, 584 (2017))

The NTEU has filed a similar lawsuit under the FLSA for its members impacted by the current shutdown.

5. Other Laws May Provide Recourse for Employees Who Are Exempt Under the FLSA

The shutdown stretched on long enough that other federal laws may kick in to protect federal employees’ rights. The Back Pay Act, for instance, may require the government to pay interest on the delayed payments. As described above, federal employees are also seeking redress under the Constitution, by bringing claims for deprivation of property without due process under the Fifth Amendment and the 13th Amendment’s ban on involuntary servitude.

It is uncertain how courts will receive these largely-untested legal theories. What is clear is that federal employees—and their attorneys—will continue to look for unique ways to recover damages beyond the amount of the delayed payments.

Author Information

Alan Lescht is the founder and managing shareholder of Alan Lescht and Associates P.C., an employment law firm in Washington, D.C. Lescht is an experienced litigator who handles all types of employment matters in federal and state courts, and before administrative agencies.