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ALL WORK AND NO PAY

February 28, 2019

ALL WORK AND NO PAY: HOW A STATUTORY CHANGE COULD PROTECT FEDERAL EMPLOYEES’ RIGHTS DURING GOVERNMENT SHUTDOWNS

By: Brooke Robbins, Volume 103 Staff Member

Spurred by political disagreement, recently, there has been a surge in extended government shutdowns.[1]There are huge costs associated with government shutdowns. For example, the most recent thirty-five-day shutdown under the Trump administration “cost the [US] economy $11 billion due to lost output from federal workers, delayed government spending and reduced demand.”[2] However, one of the greatest casualties of government shutdowns are “excepted” federal employees, who are deemed essential and must work, without pay, during these extended government shutdowns.[3] Many of these workers live paycheck to paycheck, so an extended period of forced labor without pay can be highly detrimental.[4] Additionally, there are no guarantees in place that these workers will get back pay for their unpaid work.[5] If their work is essential, why isn’t it essential to pay these workers?

In order to answer this question, it is important to understand how the current makeup of statutory protections is outdated and fails to protect federal employees. First, although the Fair Labor Standards Act should protect most federal workers forced to work during a government shutdown, courts are reluctant to intervene during government shutdowns, since shutdowns are typically fueled by political unrest.[6] Second, the Antideficiency Act, created to stop executive branch abuses during a government showdown, enables the President to circumvent the Act’s barriers on expenditures by classifying federal workers as “except[ed]” and “voluntary,”[7]which allows the President to order federal workers to work without pay during government shutdowns.[8]Working concurrently, the current statutory makeup turns a blind eye on protections for federal workers. To remedy this gap, Congress needs to create new statutory protections for federal workers.

I. THE FAIR LABOR STANDARDS ACT FAILS TO PROTECT FEDERAL EMPLOYEES

One statute that could, but fails, to protect federal employees is the Fair Labor Standards Act (FLSA) of 1938.[9]The FLSA establishes minimum wage and overtime pay requirements for employers.[10] All employees covered by the FLSA, called nonexempt employees, are entitled to these wage protections.[11] The FLSA also guarantees employees receive timely payment of wages and earned overtime pay, which is interpreted to mean wages are due on the ordinary payday.[12] These protections cover private and public sector employees alike.[13] Additionally, even if the legislature has failed to pass a budget on time, the Government’s obligation, as an employer, for prompt payment to nonexempt employees persists.[14]

The burden is on the government to prove an employee is exempt from the FLSA.[15] Section 213 of the FLSA lists various exempt employees including, but not limited to “outside salesm[e]n,”[16] those who are “employed in a bona fide executive, administrative, or professional capacity,”[17] “computer systems analyst[s]” meeting certain listed requirements,[18] and “border patrol agent[s]” whose wage requirements are covered in another statute.[19] Many federal workers are classified as nonexempt under the FLSA.[20] However, during a government shutdown, some of these employees are classified as essential to “the safety of human life or the protection of property”[21] and have to work without pay for an extended period of time.[22] For example, during the most recent government shutdown “more than 400,000 federal employees . . . worked without pay.”[23]These federal workers are not exempted from the FLSA, so technically these workers should still receive immediate minimum wage and overtime payment, but they do not.

In response to the most recent government shutdown under the Trump Administration, many unpaid, essential federal workers brought claims for violations of the FLSA.[24] Why isn’t forcing these nonexempt federal employees to work without pay covered by the FLSA’s minimum wage requirement? Facially it is. Even though many of these federal employees will later receive back pay, this still violates the FLSA’s requirement that nonexempt workers get paid on their regularly scheduled payday.[25] However, courts are reluctant to get involved in interbranch political disputes and are hesitant to act when “the damages [could] later be repaired through back pay and penalties.”[26] The courts are refusing to take immediate action on this highly political issue. While courts refuse to address federal workers’ FLSA claims, the Antideficiency Act enables the executive branch to force federal employees to work during government shutdowns without pay.

II. THE ANTIDEFICIENCY ACT IS DEFICIENT

How can the United States executive branch force essential federal workers to work without pay?

Congress has exclusive power over the federal purse.[27] To ensure the executive branch did not manipulate Congress’ fiscal control, Congress enacted the Antideficiency Act[28] to “curb perceived executive branch abuses.”[29] Today, the Antideficiency Act limits Government “expenditure[s] or obligation[s] exceeding an amount available in an appropriation or fund.”[30] The Antideficiency Act controls and limits federal financial obligations and funding during government shutdowns.[31] However, under the authority of the Antideficiency Act, the executive branch can “except” federal employees and label workers “voluntary” for work related to “the safety of human life or the protection of property.”[32] During the most recent government shutdown, hundreds of thousands of federal employees were deemed essential and “except[ed]” under the Antideficiency Act’s “voluntary services” provision,[33] which required them to work without pay.[34]

The Antideficiency Act’s “voluntary services” provision ensures that the courts, military and other essential government functions remain operational during a government shutdown.[35] However, the “voluntary services” provision of the Antideficiency Act is, ironically, highly deficient. The Act fails to protect federal workers. By classifying excepted federal workers as “voluntary,” the Antideficiency Act offers no means of paying federal workers during a government shutdown and provides no guarantees that workers will receive back pay when the shutdown ends.[36] How can a federal worker be classified both as essential to “the safety of human life or protection of property” and voluntary? These federal workers are by no means “voluntary.” They must work, without pay, or risk losing their jobs.[37] Members of Congress still get paid during a government shutdown, since “their salaries are literally written into the Constitution,”[38] yet Congress has failed to permanently secure the critical right of wage payment for excepted federal employees who are essential and forced to work during a government shutdown.[39]

III. CREATE A STATUTORY RIGHT TO IMMEDIATELY PAY ESSENTIAL FEDERAL EMPLOYEES

The solution is simple. Congress needs to modify the Antideficiency Act or create a separate federal statute to protect federal employees’ right to pay during a government shutdown. Excepted federal employees should not be classified as voluntary and should be paid immediately for the work they perform during the government shutdown. The length of government shutdowns has expanded greatly.[40] It is time for the Antideficiency Act, or separate legislation, to recognize the changing political norm of extended shutdowns that place huge burdens on excepted, essential federal workers.[41] Congressional[42] and public support[43] already exists for a statutory solution. It is time for the laws to catch up with the changing reality of extended government shutdowns.

  1. The government has shut down twenty-one times under the modern scheme for establishing the federal budget. See Jennifer Earl, A Look Back at Every Government Shutdown in US History, Fox News, https://www.foxnews.com/politics/a-look-back-at-every-government-shutdown-in-us-history (last visited Feb. 3, 2019). The majority of these government shutdowns only last a few days. See id. However, the two longest shutdowns, under the Clinton administration, beginning in December 1996, spanning twenty-one days, and under the current Trump administration, stating in December 2018, lasting thirty-five days, the Presidents and Congress had split political views and struggled to pass a spending bill. See id.; see also Doug Criss, How Long Did the Longest Government Shutdown Stretch? 21 Days, CNN (Jan. 9, 2019), https://www.cnn.com/2019/01/03/politics/government-shutdown-length-trnd/index.html (“Trump and Carter are the only presidents to have funding lapse while their own party held majorities in Congress.”). ↑
  2. Niall McCarthy, The Government Shutdown Cost the U.S. Economy $11 Billion, Forbes (Jan. 30, 2019), https://www.forbes.com/sites/niallmccarthy/2019/01/30/the-government-shutdown-cost-the-u-s-economy-11-billion-infographic/#7fd1ae92260e. ↑
  3. Federal workers during a shutdown are either furloughed, and receive unpaid leave, or work without pay. See Michael Collins et al., Today Should be Payday for Hundreds of Thousands of Government Workers. But the Shutdown Means They’re Not Getting Paid, USA Today (Jan. 11, 2019), https://www.usatoday.com/story/news/politics/2019/01/11/government-shutdown-paychecks-hold-thousands-federal-workers/2538807002/. “Excepted” federal employees “refer[s] to employees who are funded through annual appropriations . . . [but] are nonetheless excepted from furlough,” because the work they perform relates to “the safety of human life or the protection of property.” Office of Personnel Management (OPM), Frequently Asked Questions — Furloughs and Government Shutdown, http://nffe.org/ht/a/GetDocumentAction/i/32015 (last visited Feb. 3, 2019). Although there are issues surrounding furloughed workers, this Post will focus solely on federal workers who work without pay. ↑
  4. Seventy-eight percent of the United States workforce lives paycheck to paycheck. See Emmie Martin, The Government Shutdown Spotlights a Bigger Issue: 78% of US Workers Live Paycheck to Paycheck, CNBC (Jan. 9, 2019), https://www.cnbc.com/2019/01/09/shutdown-highlights-that-4-in-5-us-workers-live-paycheck-to-paycheck.html. In the most recent government shutdown, federal employees missed two paychecks in a row. “Over half, or 54 percent, of people say they would have trouble paying their bills if they were forced to go without more than two paychecks . . . [and] one in five Americans . . . say they couldn’t even go without one paycheck.” Megan Leonhardt, Federal Workers Miss a 2nd Paycheck Today — Here’s How Many Americans Could Do That and Still Pay Bills, CNBC (Jan. 25, 2019), https://www.cnbc.com/2019/01/25/54-percent-of-americans-say-they-cant-go-without-two-paychecks.html. See also id. (discussing the “creative” steps federal employees have had to take due to the impacts of losing multiple paychecks). ↑
  5. Since essential, excepted federal employees are statutorily classified as volunteers, legislative action is needed to ensure backpay for these workers. See 31 U.S.C. § 1342 (2012) (classifying excepted federal workers as “voluntary”); see also Government Employee Fair Treatment Act of 2019, Pub. L. No. 116-1 (2019) [hereinafter Fair Treatment Act] (exemplifying legislation passed to award federal workers backpay after a shutdown). ↑
  6. See infra Part I. ↑
  7. 31 U.S.C. § 1342 (2012). ↑
  8. See infra Part II. ↑
  9. Fair Labor Standards Act of 1938, Pub. L. No. 718-52, 52 Stat. 1060 (1938). ↑
  10. See id. ↑
  11. See 29 U.S.C. § 213(a) (2012) (listing “[m]inimum wage and maximum hour requirement[] exceptions”). ↑
  12. See Briggs v. Wilson, 1 F.3d 1537, 1539 (9th Cir. 1993) (emphasis added) (“The [FLSA] must . . . contemplate a time at which [the statute] is violated . . . when minimum wages become ‘unpaid.’”); id. at 1540 (“The only logical point that wages become ‘unpaid’ is when they are not paid at the time work has been done . . . and wages are ordinarily paid-on payday.”); Martin v. United, 117 Fed. Cl. 611, 622 (2013) (“The FLSA requires—and the Supreme Court has recognized approvingly—that an employee receive on time payment for work performed . . . on the regularly scheduled paydays.”). ↑
  13. See 29 U.S.C. § 203(d), § 203(e)(2) (2012) (stating an “‘[e]mployer . . . includes a public agency” and an employee of a public agency is “any individual employed by the Government of the United States”). ↑
  14. See Briggs, 1 F.3d at 1543; Award for Liquidated Damages for Violation of the Fair Labor Standards Act at 5, Martin v. United States, No. 13-834C (Fed. Cl. Feb. 13, 2017) (stating the Antideficiency Act does not cancel out obligations under the FLSA). ↑
  15. See Aaron Hotfelder, Government Employees and the FLSA, Lawyers.com, https://www.lawyers.com/legal-info/labor-employment-law/wage-and-hour-law/government-employees-and-the-flsa.html, (last visited Feb. 4, 2019) (“[F]ederal employees are presumed to be nonexempt and . . . the burden is on the federal agency to clearly show . . . an exemption applies.”). ↑
  16. 29 U.S.C. § 213(a)(1) (2012). ↑
  17. Id. See also U.S. Department of Labor Wage and Hour Division, Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA), https://www.dol.gov/whd/overtime/fs17a_overview.pdf (last visited Feb. 3. 2019) (listing the requirements to meet the executive, administrative and professional FLSA exemptions). ↑
  18. 29 U.S.C. § 213(a)(17) (2012). ↑
  19. Id. § 213(a)(18). Border patrol agents’ pay rate is covered under 5 U.S.C. § 5550 (2012). ↑
  20. See Aaron Hotfelder, supra note 15; see generally 29 U.S.C. § 213 (2012) (listing FLSA exemption criteria). ↑
  21. 31 U.S.C. § 1342 (2012). ↑
  22. See, e.g., Rachel Layne, 420,000 Employees Will Go Without Pay During Government Shutdown, CBS News (Jan. 3, 2019, 11:47 AM), https://www.cbsnews.com/news/government-shutdown-2018-employees-work-without-pay/ (stating “more than 420,000 federal employees would . . . work without pay” during a government shutdown); Press Release, Nat’l Treasury Emps. Union, NTEU Lawsuit Alleges Shutdown Violates Fair Labor Standards Act (Jan. 7, 2019), https://www.nteu.org/media-center/news-releases/2019/01/07/shutdownlawsuit [hereinafter NTEU Lawsuit] (“Customs and Border Protection employees and others exempted from the shutdown have reported for duty and served their country by providing vital services to taxpayers [without pay].”). ↑
  23. Todd Dickey, How Can the Government Expect People to Work Without Pay Indefinitely?, Washington Post (Jan. 11, 2019), https://www.washingtonpost.com/outlook/2019/01/11/how-can-government-force-people-work-without-pay-indefinitely/?utm_term=.db0edaa9a0ba. ↑
  24. See, e.g., Kelly Phillips Erb, Unions File Lawsuits as IRS, Other Federal Employees Ordered Back to Work Without Pay, Forbes (Jan. 7, 2019), https://www.forbes.com/sites/kellyphillipserb/2019/01/07/unions-file-lawsuit-as-irs-other-federal-employees-ordered-back-to-work-without-pay/#6da6950573cb (discussing FLSA lawsuits filed by the National Treasury Employees Union who “represents 150,000 employees at 33 federal agencies and departments” and the American Federation of Government Employees, which “is the largest federal employee union representing 700,000 federal and D.C. government workers”); Ruben Garcia, The Federal Government Shutdown is a Thirteenth Amendment Problem, Am. Const. Soc’y. (Jan. 23, 2019), https://www.acslaw.org/acsblog/the-federal-government-shutdown-is-a-thirteenth-amendment-problem/; NTEU Lawsuit, supra note 22. ↑
  25. See supra note 12 and accompanying text. ↑
  26. Garcia, supra note 24. ↑
  27. See U.S. Const., art. 1, § 9, cl. 7 (“No money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.”). ↑
  28. Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 923 (1982). ↑
  29. Karen L. Manos, The Antideficiency Act Without an M Account: Reasserting Constitutional Control, 23 Pub. Cont. L.J. 337, 339 (1994). ↑
  30. 31 U.S.C. § 1341(a) (2012). ↑
  31. See Andrew Cohen, The Odd Story of the Law that Dictates How Government Shutdowns Work, Atlantic (Sept. 28, 2013), https://www.theatlantic.com/politics/archive/2013/09/the-odd-story-of-the-law-that-dictates-how-government-shutdowns-work/280047/ (stating government shutdowns are “largely . . . governed by . . . the Antideficiency Act.”). ↑
  32. 31 U.S.C. § 1342 (2012). ↑
  33. Id. ↑
  34. See Layne, supra note 22. ↑
  35. See Cohen, supra note 31. ↑
  36. See 31 U.S.C. § 1342 (2012); see also supra note 5 and accompanying text. ↑
  37. Ignoring a presidential order to work, could result in termination. For example, in 1981, President Reagan fired 11,000 air traffic control workers who were on strike when they ignored the President’s order to return to work. See Andrew Glass, Reagan Fires 11,000 Striking Air Traffic Controllers, Aug. 5, 1981, Politico (Aug. 5, 2017), https://www.politico.com/story/2017/08/05/reagan-fires-11-000-striking-air-traffic-controllers-aug-5-1981-241252; see also Jim Tankersley & Thomas Kaplan, Why Don’t Unpaid Federal Workers Walk Off the Job?, N.Y. Times (Jan. 16, 2019), https://www.nytimes.com/2019/01/16/us/politics/shutdown-federal-workers-strike.html. ↑
  38. Sarah Kliff, Federal Employees Don’t Get Paid During a Shutdown. Members of Congress Do., Vox (Jan. 22, 2018), https://www.vox.com/policy-and-politics/2018/1/22/16918976/shutdown-2018-congress-salaries-paid; see also U.S. Const. art. I, § 6 (“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”). ↑
  39. Lawsuits surrounding the most recent government shutdown have also questioned the legality of forcing work without pay under the Thirteenth Amendment’s bar on “involuntary servitude.” U.S. Const. amend. XIII. See also Garcia, supra note 24 (discussing the Thirteenth Amendment issue and hypothesizing the “jurisprudential future of the Thirteenth Amendment”). ↑
  40. See supra note 1 and accompanying text. ↑
  41. See id.; see also supra note 4 and accompanying text. ↑
  42. See Steff Thomas, Updated: Legislation in Support of Federal Workers During Shutdown, fed. news network (Jan.15, 2019), https://federalnewsnetwork.com/government-shutdown/2019/01/updated-legislation-in-support-of-federal-workers-now-includes-back-pay-loans/ (discussing proposed legislation to protect federal employees during government shutdowns). The Fair Treatment Act, supra note 5, guaranteed retroactive backpay for workers, but backpay does not resolve issues associated with federal workers going extended lengths of time without pay. See supra note 4 and accompanying text. ↑
  43. Cf., e.g., Stephanie Ebbs, Unpaid Federal Workers Get Help From Food Banks During the Government Shutdown, ABC News (Jan. 15, 2019), https://abcnews.go.com/Politics/unpaid-federal-workers-food-banks-government-shutdown/story?id=60374327 (highlighting the support food banks, restaurants and advocates offered unpaid federal workers to ensure they get food). ↑
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