Why 2013 shutdown damage award dollars are taking so long

How much do you earn in a pay period?

Not a complicated question. All you have to do is look at your pay stub. Yet for some reason it’s not so simple. Nearly two years have passed since the decision in a lawsuit over the 2013 shutdown. All of the 25,000 plaintiffs are still waiting for their liquidated damages.

Heidi Burakiewicz, attorney, Kalijarvi, Chuzi, Newman & Fitch

The damages equal the pay the plaintiffs temporarily missed. Whomever in the government figures out these things haven’t finished yet. Now, the latest monthly update from the Justice Department says the calculations stopped in December. You guessed it. The bean counters are furloughed. But what is fundamentally taking so long?

Since liquidated damages are equal to the wages people didn’t receive at the time (but did get after the shutdown), it ought to be easy to calculate, right?

Not so fast. I asked Heidi Burakiewicz, the lead lawyer in that suit, as well as the ones launched for the current shutdown, about this. She explained how un-simple it actually is.

By the way, the government hired an outside consultant to do the calculations, but the monthly reports — required by the U.S. Court of Federal Claims — must be generated by government attorneys. No doubt they’ll join one of the latest suits.

First, exactly what are people entitled to under the court’s decision?

Two things:

  1.  Dollars equal to the federal minimum wage, $7.25 per hour, for the hours they weren’t paid for. Say someone worked 40 hours without pay. They’re entitled to $7.25 x 40 = $290. So if a plaintiff was earning $35 an hour, she’s only entitled to the unpaid minimum wage. She might’ve gotten the full $1,400 as back pay, but only $290 in liquidated damages. Small compensation for the hardship, but at least it’s better than a jab in the eye with a sharp object.
  2. Full value of overtime. That is, the same person will eventually get $35 x 1.5 x [overtime hours worked]. Say she worked 10 hours of overtime. That’s $525 in liquidated damages. Now that could help some serious credit card debt.

Figuring out and receiving damages for 2013, Burakiewicz said, is — or was — complicated by three factors.

First, 2013 started on a Tuesday, in the middle of a pay period. So among the 25,000 people you’ll find a wide variation in hours worked.

Second, the auditors first sought paper records for people’s shutdown hours. Many of the plaintiffs worked at the Bureau of Prisons. How do you extract paper from 122 prisons in any reasonable time? Burakiewicz said eventually the consultant figured out how to get records electronically, so the data flow is moving much faster.

It seems like a long time — five years since that shutdown — and the decision didn’t come until 2017. In federal litigation time frames, a 2013 filing to a 2017 decision is practically warp speed.

“I know it seems slow. But that’s how litigation is,” Burakiewicz said.

She expects the whole thing to go faster this time around. That’s because the legal principles were worked out in the 2013 case so the cases, in theory, ought to go faster. Maybe the government will settle and avoid trial.

Also, the government will have figured out how to get the data and calculate the damages. I’m thinking, what a thing to get good at. It reminded me of the two elderly lawyers who have clawed back, with nearly scientific precision, most of what Bernard Mader stole. God bless them, but why should anyone have to?

The last factor is that the first day of the 2018-2019 shutdown was the last day of a pay period, and a Saturday at that. Many people will have nice, easy time blocks to calculate for the minimum wage portion of their regular hours, now approaching about 160 ($1,160).

Alas, if people worked, say, 40 hours ending on that Saturday, they would have gotten paid for 32 hours of the 40-hour week. If their pay exceeded the weekly minimum wages of $290, they won’t get liquidated damages for that day. But for the next 40 hours, and the subsequent ones, they will.

Remember all those pictures of pay stubs bearing $0.00. They mean future cash if you’re in on the lawsuits and you win.

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