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Federal employees to seek damages if government doesn’t issue their paychecks on Friday, lawyer says

January 8, 2019

Federal employees forced to work without pay during the partial shutdown will seek damages if the government fails to send them their paychecks Friday, according to a lawyer who won a similar lawsuit during the last major shutdown.

The government could be on the hook for millions of dollars in extra pay in a costly, if unintended, consequence of the partial federal shutdown that began Dec. 22 and shows no sign of ending.

Congress typically provides back pay to critical federal workers who report to work even during a shutdown, but for employees living paycheck to paycheck, missing one check can cause major financial hardships.

Roughly 420,000 employees have been working without pay during the shutdown, according to a tally from the Senate Appropriations Committee, and on Saturday they completed their first two-week pay period.

Those checks normally would go out Friday, but budget officials said unless a deal is reached Tuesday, they won’t be able to make the payments on time.

One lawsuit already has been filed based on Bureau of Prisons employees who have worked overtime during the early days of the shutdown.

“A lot of people work paycheck to paycheck, they rely on this overtime to pay their bills,” said Heidi Burakiewicz, the lawyer who is leading that lawsuit and who won the class action case for 25,000 employees who worked during the last major shutdown in 2013.

In that case, a judge ruled the workers were entitled to damages equal to minimum wage and the full value of any overtime they worked during the lapse in funding.

Ms. Burakiewicz said they expect to win the same fight this time.

“From my perspective, the legal issues are identical in the newly filed case to what we had in 2013,” she told The Washington Times.

Neither the White House budget office nor the federal Office of Personnel Management responded to requests for comment.

Ms. Burakiewicz argues that failing to compensate essential workers on payday flouts the Fair Labor Standards Act.

A court agreed, ordering the government in February 2017 to pay damages in addition to their back pay from Congress a scenario that headlines dubbed as “double pay.”

The 25,000 workers included in that case are still awaiting their money, after delays in processing payroll records.

Plaintiffs say the goal isn’t to punish the government. Rather, the damages recompense employees who had to sweat out the financial duress of working without pay.

It’s not clear how many of the 420,000 would be in the class of workers seeking damages.

“I have probably not even scratched the surface of what they’re going through right now,” Ms. Burakiewicz said. “How are they going to pay their mortgage? How are they going to pay their child care?”

The labor union for federal workers urged Congress Monday to avoid the entire ordeal by taking up bills that would reopen the rest of the government. They said employees are worried they might not make their next rent payment or face additional hardships.

“The women and men who keep our country running deserve to get their paycheck on payday. It’s unconscionable that starting this week, those who have worked tirelessly at our airports and federal prisons among many other worksites and offices will come home empty-handed,” said J. David Cox Sr., national president of the American Federation of Government Employees.

While nine federal departments lost funding Dec. 22, Congress is feuding over money for one of them Homeland Security and over President Trump’s demand for more than $5 billion in border wall money.

House Democrats have scheduled votes this week on bills to reopen some of the non-controversial operations, though the White House and Senate Republican leaders have been cool to the idea.

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