The IRS has announced that employees will open tax season on time—and issue tax refunds—despite a government shutdown. But don’t plan on spending those tax refund dollars just yet: The National Treasury Employees Union (NTEU) filed a lawsuit alleging the administration is violating the Fair Labor Standards Act (FLSA) by requiring federal employees to work without pay during the partial government shutdown. You can read the complaint here (downloads as a pdf).
The complaint, which was filed in the United States of Federal Claims, is a collective action lawsuit brought by Albert Vieira on behalf of himself and all similarly situated individuals. Vieira is a Customs and Border Protection (CBP) Officer.
The FLSA, which was signed into law in 1938 by President Franklin D. Roosevelt, sets standards for workers in the private sector and in federal, state, and local governments. Those standards include the establishment of a federal minimum wage and rules about overtime pay eligibility.
The lawsuit alleges that the FLSA guarantees on-time payment of any minimum wage and overtime wages earned for covered employees. If wages are earned, but not paid out, on the employee’s corresponding regularly scheduled payday, the FLSA has been violated. According to the NTEU, the FLSA’s timely payment requirement persists even during a lapse in appropriated funds like the government shutdown.
The lawsuit also claims that the FLSA requires that covered employees be paid at least the minimum wage for all hours worked during the workweek.
NTEU is asking the court to order the government to pay compensation for these employees plus 100% liquidated damages. The government has been responsible for paying liquidated damages before for failure to timely pay FLSA wages during a government shutdown as determined in Martin v. United States, 130 Fed. Cl. 578 (2017). In Martin, the court found that the federal government failed to comply with FLSA obligations in connection with the payment of nonexempt, excepted employees during a government shutdown.
Additionally, the Department of Labor has issued guidance confirming that “[i]n general, an employer must pay covered non-exempt employees the full minimum wage and any statutory overtime due on the regularly scheduled payday for the workweek in question. Failure to do so constitutes a violation of the FLSA.” You can read the guidance here (downloads as a pdf).
Since the shutdown began, Vieira and workers like him who have not been exempted from the shutdown have been required to show up for work but have not received a paycheck. “It is unconscionable that many employees are having to work—and in some cases overtime—with no pay whatsoever,” said NTEU National President Tony Reardon.
The number of employees heading back to work without pay is about to grow. The IRS will recall a “significant portion of its workforce, currently furloughed as part of the government shutdown, to work.” Those employees will not be paid until the shutdown is resolved.
The IRS, like the CBP, is represented by the NTEU. The NTEU represents 150,000 employees at 33 federal agencies and departments including the Environmental Protection Agency, Federal Communications Commission, Food and Drug Administration, Federal Election Commission, National Park Service, Patent and Trademark Office, Securities and Exchange Commission and the U.S. Department of Agriculture.
Another labor union, the American Federation of Government Employees (AFGE), has also filed suit over unpaid wages. You can read that lawsuit here (downloads as a pdf). The AFGE is the largest federal employee union representing 700,000 federal and D.C. government workers, including the Department of Veterans Affairs, the Social Security Administration, the Department of Defense, and the Department of Justice.
Currently, about 380,000 federal employees are furloughed, while 420,000 are working without pay due to the shutdown.