Outside the Beltway

Trump Shutdown Longest Ever and Violates Law

Federal employees deemed "essential" missed a paycheck yesterday in violation of US labor law.

James Joyner · Saturday, January 12, 2019 · 19 comments

The partial government shutdown caused by President Trump’s bizarre insistence on more than $5 billion being budgeted for a border wall is now in its 22nd day, breaking the record set by the 1996 shutdown. Additionally, those in affected agencies missed their scheduled payday yesterday, creating a violation of Federal law for exempt workers ordered to work.

Government Executive‘s Eric Katz explains (“Saturday, the Shutdown Becomes the Longest Ever. And Illegal“):

The missed pay brought the shutdown further into new territory: it is now illegal. That is according to a precedent set by a federal court after the 16-day 2013 shutdown, in reference to many of the “excepted” or “exempted” employees who are forced to work during the lapse with only the promise of retroactive pay once their agencies reopen. A group of those workers sued the government after that lapse; 25,000 workers ultimately signed onto that lawsuit.

In 2014, Patricia Campbell-Brown, a judge in the U.S. Court of Federal Claims, ruled the government violated the 1938 Fair Labor Standards Act when employees worked without receiving immediate pay. While the government sought to argue the delay in payment was not “egregious,” the judge said a violation occurred under the FLSA as soon as the checks were not delivered on time. She also rejected the government’s argument that any financial hardship occurred only because of federal workers’ “poor financial management decisions.”

“The court notes that at least some government employees, who may be plaintiffs herein, were working at the GS-04 or GS-05 levels, and had annual salaries starting around $28,000 in 2013,” Campbell-Brown wrote in her ruling. “Such salaries leave families a narrow margin, particularly when—as plaintiffs in this action have described—child care expenses continue and unexpected health-related expenses arise.”

Based on that precedent, the government again violated the law on Friday when it did not pay the roughly 500,000 employees who are working during the current shutdown. That has led to multiple groups again suing the government, making the same allegations of FLSA violations. Zachary Henige, an attorney with Kalijarvi, Chuzi, Newman and Fitch, which is representing the plaintiffs in one of those cases, predicted a “great likelihood of success” given the precedent from the 2013 suit. He expected a much quicker decision this time around, noting the suit was filed in the same court and has initially been assigned to the same judge.

In 2017, Campbell-Smith issued a follow-up ruling that the employees that joined the collective action lawsuit were entitled to liquidated damages from the government. On top of the back pay they have already received, the government will have to pay out additional compensation to those 25,000 individuals. The plaintiffs will receive an amount in the neighborhood of $7.25—the federal minimum wage—times the number of hours worked between Oct. 1 and Oct. 5, 2013, the period in which paychecks were delayed. This amounts to $290 for employees who worked eight-hour days, plus any overtime they are due.

Those individuals are still waiting for those payments, a process that has been further slowed because many of the Justice Department attorneys and human resources professionals working on the case are currently furloughed. Impacted employees will likely be in line for a bigger payout this time around, depending how much longer the shutdown lasts.

That the government has seemingly ignored the ruling, neither paying the judgment nor filing an appeal, is interesting, indeed.

A trio of lawsuits seeks to obtain judgments that the requirement to work without pay is unconstitutional:

The National Treasury Employees Union, the National Air Traffic Controllers Association, and a group of five anonymous federal employees from unfunded agencies all filed separate lawsuits in the U.S. District Court for the District of Columbia challenging the government’s practice of excepting some federal workers from shutdown furloughs while withholding their pay until after agencies reopen.

In the filings from the air traffic controllers and the five federal workers, they claim that by requiring employees to work without pay during a shutdown, agencies are violating the provision of the Fifth Amendment that states that no one can be “deprived of life, liberty, or property, without due process of law.” The suits argue that federal workers “have a constitutionally protected property interest in being paid their salary” on a timely basis.

The five federal workers also allege that being forced to work without a timely paycheck violates the 13th Amendment, which banned slavery, citing the threat that agencies would place excepted federal workers in absent without leave status if they did not report to work.

“If plaintiffs refuse the defendants’ orders to work without pay, they would be subject to discipline up to and including removal from federal service,” the five employees alleged. “[Plaintiffs] are therefore required to perform involuntary, unpaid service as a prerequisite to maintaining their property interests.”

The cases strike me as without much merit. The claim that being ordered to work on the promise of eventual pay constitutes “slavery” is particularly risible, not least because, unlike enslaved people, most government employees can quit their jobs at any time. (One notable exception impacted by this shutdown is uniformed members of the Coast Guard.) But, while the legal maneuvering may be silly, the impact on people’s lives is quite real.

As an odd coincidence, my late father was furloughed as part shutdowns of November 14 through November 19, 1995 and December 16, 1995 to January 6, 1996 at almost exactly the same age I am now. Thankfully, the Defense budget has been passed this go-round, so my paycheck was direct deposited yesterday. Moreover, I’m fortunate that missing a paycheck or two wouldn’t be financially crippling. Others are not so lucky.

As Katz reported in another piece earlier in the week, many government employees, particularly those in lower grades, are living paycheck-to-paycheck.

Weston Szymanski has reported to his job at the Food and Drug Administration as normal since the beginning of the partial government shutdown. His wife, who also works at the FDA, an agency largely without appropriations despite being part of the otherwise fully funded Health and Human Services Department, is home on furlough.

Neither is getting paid.

“This weekend we sat down and went over our budget, discussed all our bills and our accounts,” Szymanski said. “We are going to immediately start pulling from our savings account. There is only so long that can go on.”

Similar conversations are happening in living rooms across the country, including among the roughly 500,000 federal employees working every day who will most likely not receive their scheduled paycheck on Friday. Those workers are weighing not just how they will make their mortgage, credit card or child care payments, but—with President Trump warning the shutdown could continue for months or even a year—how long they can afford to work for free.

“Everybody who currently has an offer on the table from a private firm, they are currently thinking about that offer far more heavily than they would normally,” Szymanski said, noting that FDA employees have specialized skills and knowledge that is highly coveted in the private sector. “For private industry, it will be quite easy pickings here in the near future when it comes to poaching.”

He hoped the situation would resolve itself quickly: “How long is this going to last when you are still going to have a workforce to call back?”

Troy Troitino is a teacher at the Federal Correctional Institution Miami, part of the Justice Department’s Bureau of Prisons. He, like all bureau employees who work inside a facility, is deemed excepted during the shutdown. Like Szymanski and his wife, Troitino said many of his colleagues are married to other federal prison workers and therefore have no income currently coming into their households.

“One hundred percent of their income comes from the agency,” Troitino said. “At one point or another they’re going to have to make a decision for their families, for their kids.”

Bureau employees have begun asking if they can take leave without pay to take jobs in construction or driving for Uber, Troitino said, but management has instructed employees that any workers who pursue that option will be considered absent without leave and face discipline.

“Everyone feels trapped,” Troitino said. “This is nothing more than slavery. They’re forcing us to work, don’t want to pay us and are putting us in a bad situation.”

[…]

Szymanski said he has climbed the ladder at FDA since the 2013 shutdown and is now in a better position to handle a few weeks without pay. Still, he now has a three-year-old daughter who has to eat, and who he would like to continue taking to gymnastics and day care. (He noted that even though his wife is home on furlough, they are, for now, continuing to use the day care because they would otherwise lose their spot.)

Joel La Chance is an excepted meat inspector at the Agriculture Department. His family has started calling the electric and gas companies for relief on their bills, as well as the bank financing his mortgage. He prefers this situation to the mid-90s shutdown, when he was forced to declare bankruptcy. For now, he said, the Nebraska plant he inspects is operating normally, and all 10 USDA employees who report there are showing up every day. La Chance imagined a scenario in which half of the nation’s meat inspectors decide to call in sick for a week during an extended shutdown, however, saying it would virtually halt food source production in the United States. Even a slowdown at his plant, which oversees the slaughter of thousands of pigs each week, would cause a sizable disruption.

“That more or less goes through everybody’s head at one point in time during something like this,” La Chance said of the possibility employees stop showing up to work. He said most of the other work around him is minimum wage, however, lamenting that he would have to pick up two or three jobs to equal his normal federal paycheck.

Several employees noted the paradox of their current situation: they want to moonlight to create a source of supplemental income, but cannot get approval for side jobs because the human resources and ethics officials who typically sign off on that work are furloughed. Certain regulatory agencies, like FDA, have particularly strict rules about moonlighting because they want to ensure their staffers do not find side jobs at the companies they regulate.

“No one has any answers,” said Troitino, the prisons teacher. “The people in the central office are furloughed. There’s no guidance.”

“There’s a lot of confusion and anger,” he added.

Emphases added.

To add insult to injury, some exempt workers are actually forced to pay additional expenses out of pocket in order to come to work for which they’re not being promptly paid. For example, subsidies for taking public transit to work (started during the Carter Administration to reduce energy consumption and pollution) are suspended during the shutdown.

To make matters worse, those financial challenges could potentially lead to the loss of their security clearance, making them ineligible for continued employment.

We recently analyzed the top reasons for security clearance denial in 2018. It should be no surprise that finances continue to top the reasons for security clearance denial and revocation. (Financial issues cause more clearance denials and revocations than all other issues combined). And now that the government has access to your credit report at any time thanks to continuous monitoring, security clearance holders do have good reasons to be concerned that financial hardships brought about by the shutdown could affect their security clearance.

“Generally-speaking, a security clearance holder should be concerned any time she or he gets into financial difficulties,” notes security clearance attorney and ClearanceJobs contributor Sean Bigley. “Accounts in collections or ‘charge-off’ status, repossessions, foreclosures, and similar issues can all be viewed by the government as evidence that the clearance holder is not living within their means or is demonstrating a lack of personal responsibility incompatible with expectations.”

[…]

The issue becomes a problem for security clearance holders who have been habitually late paying their bills—even before the partial government shutdown. For employees who have a pattern of being 30 to 60 days late making payments and who find the government shutdown exacerbates this problem, the effect on their credit score may be significant.

Just because their credit score is hurt, however, doesn’t mean they’ll lose their security clearance. The current government shutdown may cause more employees to be flagged under continuous evaluation (although this is less likely, since most evaluation currently covers Defense employees, who are still getting paid), but just because a clearance is flagged does not mean the employee would lose  eligibility. Cleared employees have the chance to mitigate any issues on appeal, and can take advantage of the ‘whole-person’ concept in arguing why they should keep a clearance. If your financial issues are directly related to the government shutdown, you will not lose your security clearance for a temporary reduction in your credit score or inability to pay bills.

“Circumstances beyond the clearance holder’s control—for example, a government shutdown—are most always viewed as mitigating details, provided the clearance holder acted reasonably under the circumstances,” said Bigley.

The caveat, however, is if the government shutdown exacerbates a pattern of financial irresponsibility. If the government sees a pattern of spending more than you make, and thousands of dollars in unpaid bills that are not shutdown related, you will have a hard time arguing the shutdown is to blame.

Thankfully, employees impacted by the shutdown will at least be covered by their health insurance (presuming they can afford to pay their up-front deductibles). Their dental and vision insurance, if they’ve opted to enroll, will continue for now— but “if employees are furloughed for two consecutive pay periods, then they will be billed via mail in order to maintain coverage.”

Of course, civil servants will eventually be paid. Non-exempt workers with enough savings not to have to stress over a missed paycheck will essentially have gotten a paid vacation. Most contract employees are simply out of luck. Ditto private sector workers–cab drivers, waiters, vendors, etc.–whose living is heavily dependent on catering to federal employees.