'Essential Employees' and the 2013 Government Shutdown: Are You a Class Member?

Beginning Monday, March 9, 2015, the Federal government is going to send notices to hundreds of thousands (potentially 1.3 million) of employees who were deemed “essential” and required to work during the 2013 shutdown, telling them of their right to join a class action lawsuit that could result in additional compensation for the shutdown period.

The theory of the lawsuit is that by failing to pay essential employees on their regularly scheduled pay day, the government now owes liquidated damages for violating the Fair Labor Standards Act, even though the employees eventually were in fact paid wages due for work performed during the shutdown. (See Federal Employees Sue Government For Delaying Pay During Shutdown for details on the original case)

The Washington, D.C. law firm of Mehri & Skalet won class certification of their lawsuit in October last year. (Martin v. The United States, No. 13-834C, U.S. Court of Federal Claims).

The class is defined as employees “classified as ‘non-exempt…declared ‘Excepted Employees’ during the …partial government shutdown; …worked at some time between October 1 and October 5, 2013, other than to assist with the orderly shutdown of their office; and …not paid on their regularly scheduled payday for that work…”

The order defining the class also set forth a plan for notices required by the court to go out to potential class members so they may opt in or out as they see fit.

Mehri & Skalet has a dedicated website—shutdownlawsuit.com— where those who believe they may be affected can go to learn more about the case and its history. Individuals who do not receive a notice may visit the site to let the law firm know that they believe they are part of the class and to opt into the suit. The firm is collecting individual stories through the site as to how the shutdown affected employees and their families.

This lawsuit underscores that there may well be additional financial fallout as the result of the 2013 shutdown, not to mention the political fallout that may well have factored into Congress averting another partial shutdown of the Department of Homeland Security within the last few days.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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