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Union says working during shutdown is unconstitutional

- The Washington Times - Friday, April 8, 2011

The country's largest federal employees union sued the government Friday, arguing it is unconstitutional to make millions of workers report for duty during a shutdown since there is no guarantee they will be paid later for the time they work.

The lawsuit, filed by the American Federation of Government Employees, says that the Constitution prohibits the government from obligating money or incurring debts unless Congress has explicitly authorized it — and without a spending bill, the government would be incurring a debt to the workers it is requiring to work through a shutdown.

"Hundreds of thousands of federal employees will be required to work during a shutdown, and there's no guarantee that Congress will keep the administration's promise to pay those employees once the shutdown is over," AFGE National President John Gage said in a statement.

The Office of Personnel Management did not immediately return a call for comment Friday afternoon

Federal officials said they expect about 800,000 workers to be furloughed in the event of a shutdown, but that still leaves millions of federal employees who would be required to report to work.

Some of the positions are funded by fees or have advanced appropriations, but in other case, workers are being asked to work with the promise that Congress will eventually pay them for the time they accrue. Those employees are known as "excepted" workers, since they are excluded from the furloughs.

In guidance issued earlier this week, the OPM said it expects federal workers will be paid for their time.

"Federal agencies do not have the authority to pay their employees during a shutdown, regardless of whether the employees are working as 'excepted' or furloughed as 'non-excepted.' 'Excepted' employees will receive pay for hours worked when the Congress passes and the president signs a new appropriation or continuing resolution," the agency said.

Emergency workers and those involved in protecting life and property, such as the military and law enforcement, are required to keep working.

Each federal department and agency is supposed to have a plan in place to designate which employees are deemed essential and which are not.

But Joe Henderson, a lawyer for the union, said major departments are still in the process of figuring out who falls into which category, and he said furlough notifications will still be going out tomorrow — by which time the shutdown may already have commenced.

He said the Homeland Security Department just released its guidance Friday afternoon.

Mr. Henderson said his union filed a lawsuit back in the 1995 and 1996 shutdowns, but a judge never ruled on the merits of the suit, eventually dismissing it months after the shutdown ended.

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