After the longest government shutdown in US history, and with the possibility of another one in two weeks if Congress can't agree on an immigration compromise, there’s a small silver lining for federal employees who were forced to work without pay: They might be able double the money they initially missed out on.
Multiple lawsuits claiming the government violated the Fair Labor Standards Act (FLSA) by not paying workers on time have been filed in the wake of the shutdown, and the lawyers in those cases and experts expect a legal slam dunk for the workers. After all, the exact same lawyers brought the exact same case after the 2013 shutdown and won.
Heidi Burakiewicz of the Washington, DC law firm Kalijarvi, Chuzi, Newman, and Fitch filed the only lawsuit against the government after the 2013 shutdown, which lasted 16 days. The case was the first of its kind and in 2017 a federal court ruled the government had violated the FLSA by not paying workers on time. Employees who had signed onto the case were entitled to additional back pay beyond the back pay they had already received.
But that court ruling hasn’t yet resulted in workers actually getting their promised money. Although federal employees did receive back pay within two weeks of the government reopening in 2013, the 25,000 or so workers who signed onto the suit are still waiting to receive their damage payments, said Burakiewicz, partly because the latest shutdown slowed the process down.
Sandy Parr, a prison nurse and kitchen foreman at the federal medical center in Rochester, Minnesota, signed onto the 2013 suit in the hope that it would set a precedent that the government could no longer force employees to work unpaid. Obviously, that precedent wasn’t set, and so she’s signed onto this current suit, while still waiting for her awarded damages from last time.
“Everybody was so unsure of how long this shutdown was gonna go,” Parr said. “We’ve never had a president of the United States stand on a podium and say, ‘I’ll keep the government shut down for months and even a year if I have to,’ like it was no big deal.”
Burakiewicz filed the first suit of this shutdown together with the American Federation of Government Employees. Considering this current suit makes the same claim as the one over the 2013 shutdown, she is confident the court will rule in the employees’ favor—and, hopefully, much sooner than the four years it took last time.
“This is no way to treat the federal workforce,” said Burakiewicz. “It’s a blatant violation. These people shouldn’t have to sue to get damages at all.”
Legal experts consulted by VICE agreed. “I am virtually certain that AFGE will win damages in this matter,” wrote Michael LeRoy, a professor at the University of Illinois College of Law, in an email. Judy Conti of the National Employment Law Project agreed: “The FLSA is crystal clear on payment of wages to hourly workers and there are no exceptions.”
Unlike your average class-action lawsuit, federal employees aren’t automatically granted damages if the court rules in their favor; each person has to sign onto the case individually, Burakiewicz explained. Thousands of people have already signed onto the suit, she said, and she encourages all affected workers to join the case on their website.
The AFGE isn’t the only group to file suit over this shutdown. The National Treasury Employees Union also filed a complaint under the FLSA, along with another suit claiming a violation of the Antideficiency Act. This shutdown has attracted a handful of other suits with a variety of legal arguments, including one claiming the 13th Amendment was violated because, the suit argues, forcing people to work without pay is slavery.
While it remains to be seen how many employees will sign onto these suits, the shutdown clearly will continue to cost the government in damages and litigation costs. That’s on top of the broader damage done by the shutdown: The Congressional Budget Office now estimates the shutdown cost the US economy $11 billion, nearly a quarter of which is irrecoverable.
Hardest hit were the workers themselves, and with the prospect of another shutdown after three weeks, even getting double back pay is little comfort to many.
Parr, the prison nurse, said she worked 90 hours of overtime during this shutdown. As president of the local union, she helped start a food pantry for employees without the cash to feed their families. She called the extra hours a “necessary evil” considering how dangerous prison work can be when a team is understaffed, but not knowing when people would get paid was scary.
And though the government is open for now, uncertainty remains.
Randy Sumner works as a counselor at the federal correctional institution in Jessup, Georgia. The shorter shutdown in 2013 wasn’t too painful, but during this shutdown Sumner had to dip into his savings. If paychecks freeze again in two weeks, he’ll start to run out of money.
“I really hope that they can come together and come up with an agreement that both sides are happy with so we don’t have to do this again,” Sumner said. “It’s not fun being used as a pawn between mom and daddy.”
Will Greenberg is a journalist in New York. See his writing in places like Mother Jones, the Washington Post, and In These Times.