But this case, filed Wednesday in the United States District Court for the District of Columbia, diverges from the others by invoking the 13th Amendment, which abolished slavery and involuntary servitude in the aftermath of the Civil War.
The four plaintiffs, who are from Texas and West Virginia, work for the departments of Justice, Agriculture and Transportation; one is an air traffic controller. The lawsuit also claims violations of the Fair Labor Standards Act, among other statutes.
“Our plaintiffs find themselves in the exact same boat as virtually every other furloughed federal employee: bills to pay and no income to pay them,” the workers' attorney, Michael Kator, told The Washington Post via email. “As this drags on, their situation will become more and more dire.”
According to the lawsuit, if the employees don’t report to work, they could face discipline or removal. The suit claims that this amounts to a form of coercion barred by the 13th Amendment.
“If this is not resolved soon, affected employees may find that beginning February 1 they will no longer have health insurance,” Kator said. “And, if this lasts ‘months or even years’ as the President has suggested, there will be defaults, foreclosures and even bankruptcies. A promise to pay back pay will not forestall those consequences.”
The 13th Amendment argument may face an uphill battle, though. Michael LeRoy, a law professor specializing in labor and employment law at the University of Illinois, said that the standard for meeting the definition of involuntary servitude is extremely high. “The courts have a very narrow perception of it,” he said. “Courts don’t tend to view pressure as coercion.”
For example, the Supreme Court held in 1988 that pushing mentally disabled men to work on a farm for no wages by threat of institutionalization did not amount to involuntary servitude, because “psychological coercion” isn’t covered under the amendment. For similar reasons, circuit courts have held that threatening unpaid or underpaid migrant workers with deportation is not involuntary servitude. Teenagers forced to complete mandatory community service as a condition of graduation also isn’t involuntary servitude, as many disgruntled parents have tried to argue in court. And forcing an impoverished man who couldn’t afford a $3 tax to perform compulsory road work as an alternative also is not involuntary servitude, the Supreme Court ruled in 1916.
That case, Butler v. Perry, is the “closest case to the government forcing somebody to work and being the defendant in a 13th Amendment case,” LeRoy said. But Butler was a private citizen threatened with imprisonment for not working, whereas the government has the authority to call in employees to work without pay under the Antideficiency Act. The act prohibits the executive branch from spending money Congress hasn’t yet appropriated — including wages.
The problem with the law — as Todd Dickey, an assistant professor at Syracuse University, pointed out in a commentary for The Washington Post — is that it runs contrary to the Fair Labor Standards Act, which lays out minimum-wage requirements for government employees. That’s an argument federal employees have made successfully in the past, Dickey noted.
But as for involuntary servitude, LeRoy said there isn’t a precedent for the situation the federal employees have presented. At the same time, he said, a government shutdown has also never lasted this long, putting these federal employees in uncharted legal territory.
“If it’s true that somebody is threatened with termination if they don’t show up for a job when they’re not being paid today, that’s an unsettled legal issue — a court could rule that is legal coercion,” LeRoy said. “Losing your job for not working without pay is, in common vernacular, coercion. Whether that satisfies the legal definition of coercion is an open question.”
Congress passed legislation on Friday ensuring furloughed workers will receive back pay once the government reopens, which would still need to be signed by Trump. Kator argues that this won’t make a difference to the employees' 13th Amendment claims, because “the bottom line remains that federal employees are being compelled to work without pay for an indefinite period of time,” he said.
And there’s no telling how long that situation may last, with a deal for Trump’s border wall nowhere in sight. If Democrats don’t give in to Trump’s demands to pass legislation including $5.7 billion in border wall funds, the president has threatened to declare a national emergency to build the wall. On Sunday, Sen. Lindsey O. Graham (R-S.C.) urged Trump to reopen the government and continue negotiating with Democrats, and only resort to a national emergency if no progress is made.
If the shutdown ends in the immediate future, LeRoy said, the promise to pay back the workers would weaken their case. But if the shutdown lasts “months or years,” as Trump has said is possible, then “what this begins to look like is a form of indentured servitude,” LeRoy said, referring to the 18th century mechanism by which servants worked for masters for a period of time without pay, but were paid much later at the end of their service.
“That’s really what it will look like,” he said. “I think the longer it goes on, the fact that you have legislation in place is less significant to the government’s defense. The more this goes on, the more this swings in the direction of employees.”