NTEU files second lawsuit on behalf of feds working without pay during shutdown

Federal employees who have been working during this partial government shutdown have another potential legal avenue on their behalf.

The National Treasury Employees Union is suing the Trump administration over the partial government shutdown. Specifically, the union is seeking back pay, including overtime, and damages for excepted employees who are required to come to work during the partial shutdown.

NTEU filed its collective action lawsuit on behalf of Albert Vieira, a Customs and Border Protection officer, in the U.S. Court of Federal Claims.

“These civil servants took an oath to the Constitution, and they do not deserve to be treated this way,” NTEU National President Tony Reardon said in a statement. “NTEU will continue to fight in the courts and on Capitol Hill to end the shutdown and ensure that all employees are fairly compensated.”

NTEU argued the government’s failure to pay overtime and minimum wages to federal employees during this government shutdown is a violation of the Fair Labor Standards Act (FLSA).

The union’s lawsuit describes Vieira’s situation as an excepted CBP officer who worked overtime on the first day of the partial shutdown and regular work hours on subsequent days. He wasn’t paid for the hours he worked on Saturday, Dec. 22. He’ll likely miss his next paycheck, scheduled for Jan. 11 for most federal workers.

“Hundreds of thousands of employees have been excepted from the current shutdown,” NTEU’s suit reads. “At CBP alone, thousands of FLSA non-exempt, excepted employees are believed to have worked overtime on Dec. 22, 2018 and not been timely paid for it. Those same employees have continued to work during the shutdown and performed regular and overtime work between Dec. 23, 2018 and Jan. 5, 2019. A collective action would be the most efficient way to resolve their FLSA timely payment claims, which involve the same questions of law and fact.”

NTEU’s lawsuit follows a similar one from Kalijarvi, Chuzi, Newman and Fitch, which filed a class action suit on behalf of the American Federation of Government Employees on the last day of 2018. The arguments made in the AFGE lawsuit are similar to those in the NTEU challenge.

The AFGE challenge names Justin Tarovisky and Grayson Sharp, employees at the Bureau of Prisons, who have both worked at least one day during this partial government shutdown and weren’t compensated for their time in their last paychecks of the year.

Heidi Burakiewicz, a partner at Kalijarvi, Chuzi, Newman and Fitch, who filed the most recent lawsuit on behalf AFGE, also filed a similar legal challenge during 2013’s 16-day government shutdown.

Judge Patricia  Elaine Campbell-Smith, then chief judge, sided with the plaintiffs. A consultant, Burakiewicz said, is still calculating the damages — equal to twice the pay for the shutdown period. She said because of the precedent from the 2013 case, she is confident the court will again decide in favor of the plaintiffs.

Despite the provisions in the Anti-Deficiency Act, which prohibits the government from spending money it doesn’t have, agencies are still obligated to pay employees in accordance with the FLSA, according to the 2013 case.

Attorneys representing the government for its part, argued at the time that the shutdown placed “irreconcilable requirements” on federal agencies.

In an interview on the Federal Drive with Tom Temin, Burakiewicz said her firm would publicize how more excepted employees can join the lawsuit.

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