Some federal employees could potentially be entitled to double pay as a result of the partial government shutdown, but there are some catches.
According to the Washington Examiner, federal employees who are deemed “excepted” or “essential” and must work during a government shutdown could be eligible for double pay if they meet certain conditions and are willing to sue the government.
This is based on a provision of the Fair Labor Standards Act that allows for “liquidated damages” if the employees are not paid on time.
What’s the Catch?
There are a couple of catches, however. The first involves the average rate of pay.
According to the Washington Examiner:
To get double pay, their [impacted employees] average earnings over the pay period must fall below minimum wage rate. For example, if they are only unpaid for a day, they may earn enough over the rest of the period so that their earnings exceed the minimum wage. The more days they are off, the better their chances of obtaining double pay. Damages for work up to a standard 40-hour week are pegged to the minimum wage.
In other words, the longer the shutdown drags on, the better the odds are that a lawsuit over the pay could be successful. In 2013, the shutdown went on for 16 days. The resulting class action lawsuit awarded back pay to roughly 25,000 federal employees who were part of the class.
The Washington Examiner added, “Also, essential employees who work overtime are entitled to be paid double the overtime amount, no matter if they have exceeded the minimum wage rate. So employees deemed ‘essential’ who are not furloughed and must work this Saturday would be entitled to damages and get paid twice.”
The second catch is that even if employees win such a lawsuit, it likely will be years before they see any money from it. It’s been almost two years since the lawsuit over the 2013 shutdown was decided, and the Washington Examiner noted that the government is still working to try to figure out the calculations on the amount of back pay owed. So, in total, it’s nearly six years later and the money stemming from the 2013 shutdown is still in limbo. Put another way, it could be the better part of a decade before any money is paid out if this last case is any indication of what it might be like in the future.
The Washington Times had also recently reported on this and noted that the partial government shutdown might cancel some federal employees’ vacations.
“A quirk of federal law says paid leave is considered government spending, and since no unauthorized spending can happen during a funding lapse, no one can take vacation,” said the Washington Times article.
It also noted the situation involving the precedent on double pay stemming from the lawsuit over the 2013 shutdown, saying it could raise the cost of this shutdown. “[T]he decision sets a standard that could ding the government again, making a shutdown even more costly to taxpayers should it happen again,” said the Washington Times.