Hundreds of federal workers and contractors rally against the partial federal government shutdown outside the headquarters of the AFL-CIO January 10, 2019 in Washington, DC. (Getty/Chip Somodevilla)

Federal employees are suing the Trump administration for forcing them to work for free

The workers argue that it’s illegal to compel federal employees to work with no pay


Michael Arria
January 24, 2019 10:00AM (UTC)
This article originally appeared in In These Times.

Workers are suing the Trump administration, arguing that it’s illegal to compel federal employees to work with no pay. Filed by the American Federation of Government Employees (AFGE), the lawsuit comes amid calls for federal workers to go on strike or stage a sick-out as the government shutdown enters its fifth week.

On December 31, the AFGE sued the Trump administration for denying pay to federal workers during the partial government shutdown, alleging that the action was a clear violation of the Fair Labor Standards Act, the 1938 law that created the right to a minimum wage and overtime pay. On January 9, the union filed an amended complaint in the lawsuit, charging that the government is in violation of minimum wage laws.

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Nearly half a million federal employees deemed “essential” have been ordered to continue working despite the fact that they do not know when they will ultimately be paid for their hours.

Heidi Burakiewicz, an attorney representing the plaintiffs as part of Kalijarvi, Chuzi, Newman & Fitch, told In These Times that the amended complaint was initiated over the fact that 420,000 federal employees had gone a full two weeks without a paycheck by mid-January, which is a violation of minimum wage laws.

Burakiewicz says the plaintiffs are seeking back pay, plus liquidated damages to compensate for the financial decisions they’ve been forced to make during the shutdown. “People are running up late payment penalties and interest charges,” said Burakiewicz. “There’s so many people who live paycheck to paycheck, and we’ve heard about so many incredibly heartbreaking situations.”

Although there are just two plaintiffs so far, AFGE is setting up an electronic sign-up system for other workers to join the lawsuit, and Burakiewicz estimates that she’s already received about 7,000 emails from people inquiring about how to become part of it.

This isn’t the first time Burakiewicz has sued the federal government. After the 2013 government shutdown, Burakiewicz represented 25,000 essential federal employees who filed a lawsuit on similar grounds. The government tried to get the case dismissed by arguing that federal law prevented them from spending any money that had not been allocated by Congress.

A judge with the U.S. Court of Federal Claims disagreed with the government’s assessment and ruled in favor of the plaintiffs in 2014. In 2017, the court determined that the workers were actually entitled to double their back pay. Despite the victory, the workers are still waiting to receive their compensation.

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Burakiewicz says that one of the reasons the litigation has been so slow is because the lawsuit was unprecedented and there were a number of legal issues that had to be ironed out. Since this terrain has now been covered, she thinks that this second lawsuit will proceed much quicker — and that it will be much easier to calculate damages for the workers.

As the shutdown continues, some are calling for strikes and work stoppages. On January 14, Barbara Ehrenreich and Gary Stevenson called on Transportation Security Administration (TSA) workers to go on a strike in a New York Times op-ed. “The moral foundation for a strike is unquestionably firm,” reads the piece. “The federal government has broken its contract with its employees — locking some of them out of their workplaces and expecting others to work for the mere promise of eventual pay.”

Federal employees are legally prevented from going on strike, and in 1981 Ronald Reagan infamously fired almost 13,000 members of the Professional Air Traffic Controllers Organization (PATCO) for participating in one. Many credit Reagan with dealing organized labor a blow that it has never entirely recovered from, as the private sector began imitating Reagan’s move and began replacing striking workers rather than negotiating with them.

However, there are signs that workers today are bringing the strike back. The year 2018 saw waves of teachers' strikes and work stoppages that rocked a number of GOP-controlled states. All of these actions were led by the rank and file, and in many cases the teachers pushed the leadership of their unions towards more radical demands. Teachers' strikes are illegal in West Virginia, yet that didn’t stop them from walking out nor did it impact their success.

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In Slate, Henry Grabar spoke with historian Joseph McCartin about the many reasons that TSA workers shouldn’t fear the specter of PATCO if they end up striking. Reagan was popular during the time of the strike, while Trump’s approval rating continues to dip, and there probably isn’t a trained replacement workforce that could easily be implemented like there was in 1981. Additionally, there are tens of thousands more TSA employees than there were air-traffic controllers, and air travel is a much bigger part of the country’s economy, which would increase the potential leverage that a work stoppage could generate.

McCartin, who wrote the definitive book on the PATCO strike, published a piece in The American Prospect on January 14 calling on TSA workers to participate in a spontaneous sickout that would force the government to act. McCartin doesn’t believe that such an action would need to be nationwide to have an immediate impact. “This partial shutdown can continue only as long as hundreds of thousands of federal workers cooperate with it by working without pay, and often having to do more because many of their colleagues have been furloughed,” writes McMartin.

In addition to the AFGE lawsuit, the National Treasury Employees Union sued the govermnent in an attempt to excuse federal employees from working. On January 15, a Washington, D.C. judge ruled that government employees are still legally obligated to go to work even if they aren’t being paid.

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Michael Arria

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