How Can Some Feds Be Required to Work and Not Be Paid?(1)

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By Jon Steingart

Some federal employees are required to work during a partial government shutdown, but they don’t get paid until things return to normal.

“They can be required to work with the full expectation that Congress will appropriate funds for their pay because not to do so would be a violation of the Fair Labor Standards Act and Title 5,” Jacque Simon, public policy director at the American Federation of Government Employees, a public sector union, told Bloomberg Law Jan. 22. The FLSA is the primary law requiring employers to pay employees for the work they perform. Title 5 of the U.S. Code contains laws relating to the federal workforce.

Most employees are furloughed during a shutdown. There are exceptions for employees who carry out functions relating to preservation of human life or public property, such as passenger screenings done by the Transportation Security Administration and veterans care provided by the Department of Veterans Affairs. The plants and animals at the U.S. Botanic Garden and the Smithsonian National Zoo will be looked after, even if the facilities are closed to the public.

Aspects of the federal government that have funding streams separate from the congressional appropriations process, such as the U.S. Postal Service, are exempt.

“The fact is that the expectation is that excepted employees will have a claim against the United States for work performed which the United States will be obligated to pay,” Richard Loeb, AFGE senior policy counsel, told Bloomberg Law Jan. 22. “It bumps up against another problem which is called the Antideficiency Act,” he said. The act bars the government from spending money on an obligation unless Congress has passed an appropriation to pay it.

Congress has to pass an appropriation to pay excepted employees for work they were required to perform during a shutdown, he said. The idea that Congress wouldn’t do so is difficult to conceive, he said. “It’s never happened,” Loeb added.

Some employees who were required to work during the October 2013 shutdown filed a class action contending they were entitled to damages under the FLSA because they weren’t paid on the next scheduled payday. The government was liable in part because it didn’t make any effort before or during the shutdown to determine whether it could comply with its obligations to pay employees on time and not spend unappropriated funds, Judge Patricia E. Campbell-Smith of the U.S. Court of Federal Claims ruled Feb. 13, 2017. The case remains open as the two sides work out the amount of damages.

The Senate voted Jan. 22 in favor of a procedural motion on an agreement that would fund the government through Feb. 8.

The government’s human resources department, the Office of Personnel Management, didn’t immediately respond to a Jan. 22 request for comment about pay for federal employees who are required to work during a shutdown. According to the OPM’s contingency plan for a partial government shutdown that was available Jan. 22 on the Office of Management and Budget’s website, the “vast majority” of OPM employees working in its “core agency infrastructure offices,” including the communications office, would be furloughed.

As for employees who are told to stay home during a shutdown, Congress usually passes an appropriation to pay them for the time they were out of work. “But it’s far from automatic,” Simon said.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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