Should ‘essential’ federal employees receive additional shutdown pay?

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The U.S. government violated federal labor law by failing to provide on-time pay for the legions of federal employees who worked during last year’s 16-day shutdown, a judge ruled this week.

The decision, by the chief judge of the U.S. Court of Federal Claims, raises the possibility that the government will have to pay damages to the border agents, firefighters, prison guards and other civil servants who were required to work during the closure. It is unclear how much that could cost, but the amount would depend upon how many workers join the lawsuit.

About 2,000 federal workers are involved in the complaint right now. The law firm representing them has estimated that up to 1.3 million employees could be eligible to join the suit.

Federal employees who filed the complaint said the government violated the Fair Labor Standards Act by waiting to pay them for their work after the shutdown ended instead of on their regularly scheduled pay dates.


National Park Service personnel remove the barricades from the World war II Memorial as the government reopens. (Astrid Riecken/Washington Post).

In ruling on whether to dismiss the workers’ claims, Judge Patricia E. Campbell-Smith went a step further than either party had asked for at that point in the case, issuing an opinion that the late payments did indeed violate federal law.

Campbell-Smith wrote that “courts have determined almost universally that an FLSA claim accrues, for limitations purposes, when an employer fails to pay workers on their regular paydays, and that a violation of the Act also occurs on that date.”

The judge left open the question of whether the government owes damages, saying such a determination would have to come through another judgment or trial. If the case comes to that point, she said, the government would have to prove that it had “reasonable grounds” for delaying the workers’ pay and operated in “good faith.”

“It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at a trial,” Campbell-Smith said. She added that “additional factual determinations [would] remain to be made as to which employees, if any, are entitled to recover damages, if any, to which those employees would be entitled.”

The Justice Department argued that delaying pay was reasonable in light of the Anti-Deficiency Act, which prohibits compensation for employees when congressionally appropriated funds are not available. The agency declined to comment on the ruling Monday, citing a policy of not discussing ongoing litigation.

Shortly before the shutdown took effect on Oct. 1, Congress passed a bill to ensure on-time pay for military personnel and the civilian employees who support them. In their deal to end the shutdown, lawmakers approved legislation to pay federal employees retroactively for the closure period, regardless of whether they worked during that time.

Federal workers in the lawsuit say they endured financial hardship because of the delayed payments.

Heidi Burakiewicz, who represented the plaintiffs during oral arguments, said the ruling represented a first step toward “providing relief” for those employees. “All federal employees – especially those being paid low wages – should get the compensation they need to help make up for hardships caused by the government’s own dysfunction and outright violation of the law,” Burakiewicz said.

The American Federation of Government Employees, a union that represents many of the federal employees who were required to work during the closure, applauded the decision on Monday.

“AFGE is monitoring this litigation closely and, if it appears that damages are available, we will vigorously pursue an action for damages on behalf of the thousands of federal employees represented by AFGE who are entitled to a recovery,” said J. David Cox, the group’s president.

President Obama designated Campbell-Smith as chief judge of the Federal Claims court in October 2013.

Josh Hicks covers the federal government and anchors the Federal Eye blog. He reported for newspapers in the Detroit and Seattle suburbs before joining the Post as a contributor to Glenn Kessler’s Fact Checker blog in 2011.
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