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Congress avoided a government shutdown yesterday. And that’s a very good thing, obviously for a lot of reasons, but one of them is that downtime can cause problems that literally last for years. Look no further than the employee compensation issues surrounding the 2013 and 2018 shutdowns, which are still pending in court. Plaintiffs federal employees who worked without pay during these closures argue they owe damages under the Fair Labor Standards Act. The government maintains that this is false, because under the Anti-Disability Act it would have been illegal to pay them during the shutdown. The lawyers are now filing briefs with the Federal Circuit Court of Appeal, which is expected to resolve the apparent conflict between the two laws very soon. Federal labor attorney Heidi Burakiewicz represents tens of thousands of employees who sued for damages after the 2013 and 2018 shutdowns. And she joined Federal Drive with Tom Temin to make us aware of these cases.

Jared Serbu: Thanks, Heidi, for joining us. And yes, let’s start by talking about the situation in these two cases, because we have been talking about these lawsuits for a very long time now.

Heidi Burakiewicz: Both cases were – the government appealed both cases to the Federal Circuit Court of Appeals, which is the court that has appellate authority over the Federal Claims Court. And we are eagerly awaiting the decision of the court of appeal. We are very convinced of our position that the government violated the FLSA and owes damages to essential workers who had to go to work and were not paid on the scheduled payday.

Jared Serbu: And you will correct me on that, but I think the fundamental legal question for the court to decide here is whether the anti-disability law really prevented the government from making these payments during a shutdown and payments liquidated after the shutdown. closing. Is this a good summary?

Heidi Burakiewicz: Yes that is correct.

Jared Serbu: And so give me your argument as to why the anti-deficiency law does not remove the need for these payments.

Heidi Burakiewicz: Sure. Thus, the anti-deficiency law prevents government officials from spending funds that have not been authorized or appropriated by Congress. But that does not negate the government’s obligation. Under other laws or contracts, there are cases dating back to the 1800s where the government, in a way, even though it lacked funds was still held accountable in the courts, it had to fulfill its obligations under various contracts to which he had committed. And the same principle applies here – the Fair Labor Standards Act is a Depression-era law that sets the basic minimum requirements for paying employees in this country, which you pay someone a minimum wage for all hours worked, and full-time and one-half hour overtime when working more than 40 hours per week. And the Anti-Deficiency Act does not negate the obligations the government has under the Fair Labor Standards Act. And so, because they weren’t paying these employees every time a payday came and went and the employees weren’t getting the wages they worked and earned for, this is a violation of Fair Labor. Standards Act. And the result is that the government owes these employees damages.

Jared Serbu: “Liquidated damages” in this context, which just means double pay, doesn’t it?

Heidi Burakiewicz: Yes, it is the value of the unpaid minimum wage, plus the total value of the overtime that has been worked.

Jared Serbu: One thing that has happened since even the 2018 shutdown is that Congress came back and passed a law in 2019. In essence, ensuring that any government employee who suffered a shutdown would be reimbursed. Does this change the legal landscape in your mind when it comes to the FLSA?

Heidi Burakiewicz: Absolutely not. Again, anytime a payday comes and goes and an employee does not receive their pay, it is a violation of the Fair Labor Standards Act. So even if the government compensates employees after the fact or retroactively, the violation of the law has already taken place. And the employees were injured. There are countless stories from people – I mean, the last stop was 35 days. And it wasn’t clear until the very end, when it was going to end. There were countless stories of people who, we’re running out of money, how to make really tough decisions about whether they pay their rent, or they feed their kids, or they pay for public transport to get to work. , because they weren’t – four weeks they weren’t paid. So I’m happy that federal workers are assured of retroactive payment, but that doesn’t change the fact that the FLSA was violated.

Jared Serbu: But there is no disagreement, is there, that the government would be legally prohibited from making payments to these employees during a shutdown, is there?

Heidi Burakiewicz: Well, there are actions Congress could take, even if the appropriations expire to meet its obligations under the Fair Labor Standards Act. So, for example, in 2013 the Ministry of Defense was one of the agencies that had no funding during this government shutdown. And Congress passed the Pay Our Military Act, so active-duty military personnel and civilians who support the military continue to be paid during the shutdown. If Congress can do it, there is no reason the military cannot do it for essential workers who still have to go to work during an appropriation deadline. If these people are so vital, that our country cannot function without them, then absolutely steps can be taken to ensure that they are paid and taken care of during another disruption in the appropriations.

Jared Serbu: In addition to asserting that they really have no choice but to not pay these employees, I think another government argument here is that the Fair Labor Standards Act does not explicitly deal with the date to which these payments are to be made. I guess you don’t agree with that, if these assumptions, okay, tell me why.

Heidi Burakiewicz: Absolutely, I totally disagree with this argument. It’s very clear, the legal precedents and the statute itself, a violation of the statute of the Fair Labor Standards Act takes place – you look at the statute of limitations. When does the claim accumulate? The claim accumulates on the employee’s normally scheduled payday. So, for example, if an employer pays an employee on time, but only pays him a portion of the wages owed to him under the Fair Labor Standards Act, that violation occurs on the day the payment is made to the employee. ’employee. And similarly, a violation occurs if the payday comes and goes and the employee is not paid at all. And if you look at the legislative history, it’s very clear that it’s important that employees get paid on time, just like a business needs to know when its revenue is coming in. An employee too, so that he can pay his rent, pay his bills, budgets or expenses.

Jared Serbu: For individual employees, this is obviously a matter of fairness. If they are entitled to back pay and damages, they should get back pay and damages. Is there a public policy argument at play here as well? Is there an argument that the application of damages in situations like this would impose any chilling effect on Congress to avoid future closures or future pay breaches?

Heidi Burakiewicz: Well, I want to preface my answer by saying that the FLSA lump sum damages provision is not meant to be punitive. It’s there because Congress recognizes that when you don’t pay an employee, those minimum wages, that overtime, we know it’s due on the scheduled payday, that they’re going to get hurt. And sometimes this damage is difficult to calculate. Maybe you have interest charges, late fees? Not to mention the stress and trauma people went through not knowing when they would get their next paycheck. Thus, the damages provision is intended to compensate employees for the harm they have suffered. It’s not meant to be punitive. Having said that, I can certainly tell all of the clients I represent that we want nothing more than to send the message that the federal government simply cannot treat the federal workforce like this. We wouldn’t be idle if a private employer did. And the federal government is no different. We therefore hope that there will be no more closures, no more budget deadlocks. But if there are, we hope they will take some common sense steps to ensure that the FLSA is respected and that employees are taken care of.

Jared Serbu: Going back to where we started, a lot of employees involved here since the 2013 shutdown, we now have two cases going up to the federal circuit. If that’s okay with you and they decide that federal labor standards law applies, damages must be paid. What’s the quickest practical time frame in which your clients could actually get that, get those damages?

Heidi Burakiewicz: Well, in the 2013 case the government calculated the damages for all the plaintiffs in the case. So, we hope and expect this to be a very quick process. Because the damage has been calculated. Damages were not calculated for the 35-day government shutdown that took place from December 2018 to January 2019. But we laid the groundwork based on the litigation in the 2013 case, we followed the process of collecting the electronic information it needs to calculate the damage, person by person, we have agreed on the formula to use and we have laid the groundwork, so I am optimistic that the process of calculating damage in the case of the 35-day government shutdown will go much faster.

Jared Serbu: Yeah, I was just going to ask about it. And you answered it and do you have any idea why this process for the 2013 case took so long to determine what the damage would be? I mean, isn’t it just about doubling the salary arrears you’ve already paid?

Heidi Burakiewicz: Well litigation is never quick, and the government – it was quite a process to put together all the information they needed to calculate damages for 25 to 26,000 plaintiffs who had joined the case. , and the formula was a bit more, we went back several times to this, but finally agreed on what this formula should be. So again, I’m optimistic that we’ve laid the groundwork, we know what the formula is, we know what the process is to get the information we need to do the damage calculations. And next time, the 35-day government shutdown case will go faster.

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