Double Pay for Federal Employees Working During the Partial Shutdown Could Become Reality

Recent lawsuits mean some federal employees could be eligible for double pay because of the shutdown, but it could be a while before they see the money.

As FedSmith has previously reported, some federal employees could be eligible for double pay for work incurred during the recent federal government shutdown.

About 25 percent of the agencies were affected by the shutdown. Departments that were shut down include Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior, Justice, State, Transportation and Treasury, in addition to NASA and the Food and Drug Administration (FDA). While most of the military are currently funded, the Coast Guard is not and its personnel have been impacted.

Despite the shutdown, employees who are considered “essential” were required to work, even without pay. Federal employees working without pay in the shutdown were doing so in a variety of dangerous roles: correctional officers, border patrol, immigration and customs agents, Transportation Security Administration (TSA) officers, and other employees who are labeled as “essential,” according to an American Federation of Government Employees (AFGE) statement outlining a recent lawsuit filed on behalf of approximately 400,000 federal employees. However, those impacted could total up to 800,000.

Specifically, in the complaint, the plaintiffs allege that as “excepted employees,” they have not been paid for overtime or any work performed “after the commencement of the shutdown on their regularly scheduled payday for biweekly pay period 25, which includes December 9, 2018 through December 22, 2018.” In addition, these employees have not been paid for any time worked since December 22, 2018.

“Positions that are considered ‘essential’ during a government shutdown are some of the most dangerous jobs in the federal government,” said AFGE National President J. David Cox Sr., in a press release. “They are frontline public safety positions, including many in law enforcement, among other critical roles. A substantial number of those working without pay are military veterans.”

The plaintiffs named in the lawsuit, employed by the high-security prisons that are run by the Justice Department, claim that their overtime work that they were not paid for occurred after the partial shutdown began.

Citing a violation of the Fair Labor Standards Act (FLSA), the American Federation of Government Employees (AFGE) filed the lawsuit against the federal government on behalf of federal employees who are required to work, claiming that it is illegal for federal employees to work without pay during the partial shutdown. Withholding the pay of workers who are clocked in violates the portion of the FLSA that establishes minimum wage and overtime pay.

The longer a shutdown goes, the more likely it is that employees will receive double pay. In order to receive double pay, the impacted employee’s average earnings over the pay period must fall below the minimum wage rate.

The Washington Examiner gives the following example: If an employee is only unpaid for one day, they may earn enough over the rest of the period so that their earnings exceed the minimum wage. Additionally, “essential employees” who work overtime are entitled to double pay of that overtime regardless of whether they have exceeded the minimum wage rate.

Essential employees who are not furloughed and must work overtime will be entitled to damages and will be paid twice. In short, given that the shutdown began December 22, the number of employees who will be eligible to receive double pay is very high.

The only catch is the amount of time it will take for those employees to see the payment. According to FedSmith, it has been two years since the decision was issued in the 2013 case and the government is still working to try to figure out the calculations on the amount of back pay owed.

AFGE previously sued the federal government following the 16-day 2013 government shutdown, claiming that the FLSA requires that all employees, including federal employees, be paid on time for their services. It was later determined by a U.S. Court of Federal Claims judge that about 25,000 federal workers were due twice their back pay because of the violation, but the employees who were part of the lawsuit, however, still have not received the pay.

So while an employee might be entitled to double pay, it could be many years before that pay is actually paid out.

Lawmakers have thrown around the idea that TSA employees stop coming to work in order to force appropriations. As of January 14, TSA experienced a national rate of 7.6 percent unscheduled absences compared to a 3.2 percent rate one year ago, Monday, January 15, 2018, TSA spokesman Michael Bilello said on Twitter.

However, the law prohibits federal workers from striking. If an employee does not show up to work, regardless of pay status, he or she will be deemed absent without leave (AWOL) and subject to consequences, including being terminated. Thus, striking does not seem to be a responsible decision for those essential employees who are forced to work without pay.

More employees are finding themselves being categorized as “essential” as the days pass. For example, the Internal Revenue Service announced plans to recall as many as 46,000 employees furloughed in the shutdown in order to handle the tax filings expected to begin in February.

Several more lawsuits have been filed and more could follow. Federal employees seeking guidance on dealing with the effects of the partial government shutdown should consult with an attorney who is knowledgeable in federal employment law.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.