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Friday, February 1, 2019

Government Shutdowns: Is It Legal for the Federal Government to Make Employees Work Without Pay?

As you probably know, there are certain laws in place that prevent workers from being made to work without pay. At the most basic, the 13th Amendment to the Constitution outlawed slavery. A bit less dramatically, the Fair Labor Standards Act (FLSA) and various amendments thereto have put in place a minimum wage that workers must earn – to pay them less is a violation of the law. In fact, the United States Department of Labor itself spells out the extent of these laws on its website: you cannot “volunteer” to work for you job, and you must be paid for overtime.

These are generally not very controversial laws. We all agree that people need to be paid for work. When employers do not pay workers for their time, it is called “wage theft,” and a shockingly high number of lawsuits and administrative proceedings are started every year to punish and crack down on employers who engage in it. Got it? Work = pay. Very simple.

So then how is it legal for the federal government to force employees to work without pay, during a government shutdown?

 That’s a great question, and unfortunately, there is no perfectly correct answer! Let’s first take a look at recent precedent. After all, the 2018-2019 government shutdown may have been the longest, but it was by no means the first. The government shut down for 16 days in 2013. During that time, many federal workers had to show up for work (as they are deemed “essential” employees under the law), but were not paid on time. 25,000 of those workers brought a lawsuit alleging that by failing to timely pay them, the government violated the Fair Labor Standards Act.

The court ruled in favor of those workers! Let’s be really clear about what that means: a federal court has held that it is, in fact, a violation of the Fair Labor Standards Act to make federal workers work without pay during a government shutdown. Great news, right?

But wait. First, those federal workers are still waiting to receive their damage awards. The case wasn’t decided in their favor until 2017, four years after the shutdown at issue. And even today, in 2019, the government has still not paid the workers the statutory damages they are owed. (The workers have received their back pay, but the law also penalizes the employer – in this case, the government – by providing the workers with additional funds.)

Second, even though this precedent exists, and even though it is uncontroversial that employees need to be paid for their work, the courts have proven themselves unwilling to take any sort of immediate action in favor of the workers, as they are wary of inserting themselves into what they see as a political dispute. Workers’ unions brought a lawsuit during the most recent shutdown based on both federal labor laws and the Constitutional ban on “involuntary servitude,” and requested immediate financial relief. The federal judge declined, stating it would be “profoundly irresponsible” of him to issue an order that could result in thousands of federal workers staying home, including employees of the Federal Aviation Administration.

The shutdown is now over – at least for the time being – and so workers should expect to receive their back wages soon. And there is some other good news: just like the 2013 employees, those forced to work without pay during this shutdown should receive some additional money on top of their backpay to compensate for their damages.

But let’s take a second to really summarize and understand what’s going on here, because it comes close to being what lawyers like to call a “legal fiction,” a situation where everybody looks the other way on the strict law because the consequences are frightening. 1) It is illegal to make employees work without pay. 2) It is illegal for the federal government to make employees work without pay during a government shutdown. 3) There is nothing that can be done about that, at least during the shutdown.





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