Fed Union Sues U.S. Government Over Shutdown

Employees claim working without pay violates Constitution, labor law

U.S. Capitol
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January 13, 2019

One of the largest government employees unions says its members should not be forced to work without paychecks.

The National Treasury Employees Union (NTEU), which represents workers in the IRS and Customs and Border Protection among others, is suing the federal government alleging that its members should not be forced to work without pay. The labor group filed two suits alleging that the United States has violated both federal labor law and the Constitution by bringing the 800,000 federal employees deemed essential into work without their normal pay during the government shutdown, which is now entering its 23rd day as Democrats battle President Donald Trump over funding for a border wall with Mexico. The suit asks the Court to "pay members of the collective action liquidated damages in an amount equal to any minimum wage and overtime wages earned since December 22" in addition to their back wages.

"If those wages are earned, but not paid out, on the employee’s corresponding regularly scheduled payday, the [Fair Labor Standards Act] has been violated," the union said in a petition to the U.S. Court of Federal Claims.

NTEU Attorney Gregory O'Duden said the lawsuits should send a signal to all politicians. Regardless of who is to blame for a shutdown, the liberal interpretations of "essential employees" are used as a smokescreen to cover up the harm that the stalemates cause for workers who show up at the office knowing that it could be weeks until they are paid for their labor. Private sector companies that engaged in such behavior would face stiff penalties from the very regulators who are working unpaid during the shutdown.

"Money can't be obligated in absence of appropriations," he said. "We're trying to find a way to establish a legal principle that will make these shutdowns unpalatable to the politicians who think they can get away with it."

The federal government has given workers, including those deemed non-essential during shutdowns, their full paychecks. That practice, however, has not been guaranteed, according to O'Duden. Even if the payments are made when the federal government re-opens the workers still have bills and mortgages to pay regardless of their employers' funding status.

"This will end up putting a lot of our members, not only in financial discomfort, but dire straits," O'Duden told the Washington Free Beacon.

The federal government only pays interest on missed paychecks in the event that a shutdown extends beyond 30 days, according to NTEU. The union has previously filed similar lawsuits during past shutdowns including the 1995 impasse between President Clinton and a GOP-controlled Congress, but those were never ruled on because the eventual re-opening of the government rendered the complaint moot. The NTEU suits seek liquidated damages that would entitle members to double pay for the work performed during the shutdown. The status quo has allowed lawmakers to "blunt the effect of the shutdown," according to O'Duden.

"There's no doubt that these men and women are dedicated to protecting the country," he said. "But employees are being used as pawns in a political debate."

The administration declined to comment.

Published under: Government Shutdown