Federal Employees Are Suing the Trump Administration for Forcing Them to Work for Free

Michael Arria

Protesters hold signs during a protest rally by government workers and concerned members of the public against the government shutdown on Friday, January 11, 2019 at Post Office Square near the Federal building, headquarters for the EPA and IRS in Boston. The rally was organized by The American Federation of Government Employees (AFGE). (JOSEPH PREZIOSO/AFP/Getty Images)

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. 

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.

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.

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.

Michael Arria is the U.S. cor­re­spon­dent for Mon­doweiss. Fol­low him on Twit­ter: @michaelarria.
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