The Washington PostDemocracy Dies in Darkness

How can the government expect people to work without pay indefinitely?

The system wasn’t built for an era of routine shutdowns. It pits the Antideficiency Act against a key labor law.

The current federal government shutdown has just tied the longest in United States history. For 21 days, more than 400,000 federal employees have worked without pay. As they will keep doing, indefinitely.

They have no choice. Their jobs are classified as vital to a basic level of government functioning. The requirement to report to work without knowing when they will be paid is both a condition and the reality of their employment. Furloughed employees might (within ethics guidelines) labor elsewhere during the shutdown so they can put food on their tables and gas in their tanks and keep the lights on. But the “excepted” workers are already occupied. Eric Young, president of the union that represents federal prison workers, told the Atlantic that this “constitutes involuntary servitude.”

If all this seems draconian, even medieval, in 21st-century America, there’s a good reason. The system was not designed to accommodate the modern era. Drafters of federal employment and appropriations law hardly envisioned a government in which the shutdown would become normalized — an increasingly routine political maneuver that happens to have extreme consequences for ordinary workers.

Statutory language that evolved into today’s Antideficiency Act was introduced in 1870, setting the ground rules. The act prohibits executive branch officials from authorizing future spending before Congress has appropriated the money to particular agencies and programs. When Rep. Samuel Randall offered the language in the middle of House floor debate on government funding in 1870, another representative commented that the proffered text simply repeated what the Constitution already required. Signaling his displeasure with the executive branch’s compliance, Randall responded: “Well, they do not adhere to it.” The amendment was quickly adopted.

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Could the congressmen voting then even have imagined the effect the Antideficiency Act would be having on a wide swath of federal workers and contract employees now? In 2018 alone, there were three distinct shutdowns. Although the first two were much shorter than the one we are in, this trajectory isn’t desirable or sustainable. A 2013 lawsuit and two copycat suits filed during the current shutdown have exposed the cracks in the system governing shutdown pay practice.

The suits highlight the main flaw: The Antideficiency Act runs on a collision course with a core employment law, the Fair Labor Standards Act (FLSA). Enacted during the New Deal and later expanded by Congress to cover federal employees, the FLSA requires the government to pay minimum wages and overtime premium pay to workers not otherwise exempt from the law’s coverage, such as employees in professional or information technology roles. For example, at the Justice Department, assistant U.S. attorneys working during the shutdown would most likely not be protected by these provisions of FLSA, while prison guards and law enforcement officials would. Requiring employees not otherwise exempt from the FLSA to work without pay violates the clear text of the law. The government, however, contends that its hands are tied by the terms of the earlier federal law. There is no equivalent of the Antideficiency Act in the private sector, which makes federal employees — and some of their state counterparts with similar appropriations rules — uniquely vulnerable to this predicament. And it means the Antideficiency Act and the FLSA are headed for a showdown.

Until 1980, agencies for the most part did not furlough employees when their appropriations lapsed. They curtailed spending in other areas, such as travel or new contracts. That maneuver ended dramatically in April 1980. Attorney General Benjamin Civiletti presented a legal opinion to President Jimmy Carter that called for a much stricter interpretation of the Antideficiency Act. Civiletti included a dire warning. In “appropriate cases,” the Justice Department would criminally prosecute federal officials found to be in violation. This had never happened before. And no federal officials were eager for it to happen to them.

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In a case decided in early 2017 stemming from the 2013 government shutdown, the chief judge on the Court of Federal Claims found that the government violated the FLSA when employees were not paid at least the federal minimum wage (which is already most likely below their normal hourly wage), and overtime due to them, on time. Almost two years after this ruling, the Justice Department is still working with the plaintiffs to calculate damages owed to the affected class of federal employees. Last week, two federal prison employees and their union filed another class-action suit seeking pay and damages for similarly situated workers from this shutdown. This week, two Customs and Border Protection officers filed suit as well. And on Friday, the class for an FLSA lawsuit potentially became much larger — it was the first scheduled federal payday falling fully within the shutdown, and no checks were issued.

Only one thing is certain about this shutdown. At some point, it will end. When the government fully reopens and the shutdown’s effects on the management and functioning of the government are still fresh, Congress may want to consider taking action to prepare for shutdowns of the future. It could start with legislation addressing how the Antideficiency Act and FLSA can better coexist. Such legislation could make clear the government could lawfully pay FLSA-required wages for labor performed during a shutdown. A broader solution would entail Congress permanently appropriating pay now and then later reconciling it with agency budgets for all federal employees who are required to work during any future shutdown.

Of course the best solution for the maintenance of efficient and effective government and its workforce will always be to avoid shutdowns entirely by appropriating funds on time. Representative Randall and his colleagues would no doubt agree.