- The Washington Times - Sunday, March 8, 2015

The administration Monday will send notices to about 1 million of its employees who worked during the 2013 government shutdown and who are eligible to join a lawsuit accusing their agencies of breaking the law and demanding extra back pay.

All paychecks were halted during the shutdown, which lasted more than two weeks, but hundreds of thousands of employees were deemed essential and kept on the job anyway.

That means they missed an Oct. 5 paycheck. Even though the money was repaid later, a federal judge has ruled that the fact that they weren’t paid immediately for a pay period means they didn’t earn the minimum wage, and the government as their employer broke the Fair Labor Standards Act.

The court, though, is still deciding whether the government needs to pay damages in the form of extra back pay to those employees.

“People suffered actual harm as a result of not being paid the minimum and overtime wages on their regularly scheduled pay dates such as incurring late charges on unpaid bills,” said Heidi R. Burakiewicz, a lawyer who is handling the case for federal employees.



The notices going out Monday invite federal employees to come forward and self-identify as having missed paychecks while working as essential employees during the shutdown.

The notices come just days after Congress averted another partial shutdown — this time of the Homeland Security Department.

Most Homeland Security employees are deemed essential, and nearly all of them would have been required to be on the job without pay if a shutdown ensued.

Ms. Burakiewicz said the lawsuit sends a message to Congress.

“There is always the possibility of another shutdown,” she said. “The larger the percentage of employees who join the case, the stronger the message to the politicians that this is not acceptable.”

The 2013 shutdown ensued after House Republicans demanded that funding for the rest of the government be tied to language halting the Affordable Care Act. Senate Democrats balked and stripped out the anti-Obamacare language, leaving the two sides at a stalemate.

Without a bill, funding lapsed as of Oct. 1, 2013, the beginning of the fiscal year. About 800,000 federal workers were sent on furlough, and the administration announced tight shutdown restrictions including closing national parks.

All employees returned to work Oct. 17, and all employees, including those sent home on furlough who didn’t do any work, got full pay — a regular paycheck on Oct. 19 and then a paycheck to cover the Oct. 5 check they missed during the shutdown.

The Obama administration has argued to the federal court that even if employees missed a paycheck initially, they were paid within 30 days, which means the back pay and damages parts of the law never come into play.

The administration also argues the employees would have to show the government’s action was “unwarranted or unjustified.”

“Any alleged delay in payment is not an unjustified or unwarranted personnel action or a withdrawal or reduction of all or part of their pay under the Back Pay Act,” government attorneys told the court last year.

The court has yet to rule on that issue, according to the notice being sent to employees.

The federal employees’ lawsuit argues that a number of workers who live paycheck to paycheck were left haggling with creditors for a grace period on bills or had to deplete their savings.

Employees wishing to join must sign up by June 29 at shutdownlawsuit.com.

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