According to court documents, “essential” government employees are those “performing emergency work involving the safety of human life or the protection of property.”
Often, lead attorney Heidi Burakiewicz said, the roles are dangerous, yet necessary to a well-functioning democracy.
“All the jobs that we think of as ‘traditional first responders’ are likely considered essential,” she told The Washington Post, listing Border Patrol agents, law enforcement officers and federal firefighters as examples. “It’s outrageous the government expects them to work without knowing when they’ll get their next paycheck.”
The governmental impasse stemmed from President Trump’s demand for $5 billion toward a wall on the U.S.-Mexico border. So far, the stalemate does not appear to be budging.
Burakiewicz’s D.C.-based law firm, Kalijarvi, Chuzi, Newman & Fitch, and the American Federation of Government Employees, the largest federal employee union, initiated the complaint as the shutdown entered its second week. It is the first legal action targeting effects of the closure.
The two named plaintiffs, Justin Tarovisky and Grayson Sharp, are corrections officers with the federal Bureau of Prisons. Both are also deemed “essential.”
“They’re working a dangerous job, they’re critically understaffed, and now, they don’t know when they’ll next get paid,” she said, adding that “essential” employees will continue incurring the costs of commuting to work, such as gas and child care. Without knowing how long the shutdown will last, many workers may be forced to make challenging choices.
"They may be paycheck to paycheck, have cellphone bills, mortgages. ... It’s unacceptable for any employer, but especially for the U.S. government,” Burakiewicz contended.
Her firm sued the government during a 16-day shutdown in 2013 over the funding for President Barack Obama’s health-care law, arguing that failure to pay federal workers on their regularly scheduled payday violated the Fair Labor Standards Act. The court agreed, holding that employees needed to know when they would receive their paychecks, and ordered the government to pay double the amount owed them. There are 25,000 employees still waiting to receive those damages.
Federal employees are paid biweekly. Because of the late-December timing of the shutdown, only employees with unpaid overtime wages, like Tarovisky and Sharp, can currently file suit. The next pay cycle ends at midnight Jan. 5, with the scheduled payday soon thereafter. If the government closure is still ongoing, and no “essential” employee receives a salary, legal claims will become available to them all.
Of the 2.1 million federal workers nationwide, The Post reported, approximately 800,000 are expected to be affected by the shutdown.
There are 420,000 federal employees deemed “essential.” At least 380,000 other federal workers are deemed “nonessential,” according to CNBC, and have been placed on temporary leave until the shutdown ends. Furloughed employees span the Departments of Commerce, Transportation, and Housing and Urban Development, as well as the Forest Service, National Park Service and IRS.
Because they are not performing government duties, those employees have no recourse for financial harm suffered.
Since Dec. 22, Trump has continued to defend his positions on the border wall and government shutdown, even claiming that many federal workers encouraged him not to waver.
Tony Reardon, president of the National Treasury Employees Union, which represents 150,000 members at 33 federal agencies and departments, called the shutdown “a travesty.”
In a survey of 1,500 union members, The Post previously reported that about 85 percent said they had limited holiday season spending or planned to do so because of uncertainty about income. “Federal employees should not have to pay the personal price for all of this dysfunction,” Reardon said.
Like Reardon, Burakiewicz said the federal workforce shouldn’t be used as a pawn.
“It reflects a complete lack of understanding about who is harmed by this shutdown,” she said. “Federal workers overwhelmingly want it to end. The fact that we just filed this lawsuit in conjunction with the largest union of federal workers supports that.”
In a statement Monday, J. David Cox, the AFGE’s national president, wrote that requiring federal employees to work without pay is “nothing short of inhumane.”
“They deserve the decency of knowing when their next paycheck is coming and that they will be paid for their work,” he said. “Our intent is to force the government and the administration to make all federal employees whole.”
Philip Rucker and Lenny Bernstein contributed to this report.