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It’s a foundation of economic life going back at least to Bible times: When employer and employee agree on a wage, they stick to it. And US federal law says employers have to pay for work performed. So how come many federal employees have to work without pay? It’s a countervailing tradition that says vital federal workers must stay on the job even when there’s no money to pay them. Workers are battling back with lawsuits that some legal scholars believe have merit. While the Trump administration is trying to force more federal workers back to work, pressure to pay them is building. On Thursday, some 18,000 federal workers petitioned to end the shutdown. Also, California Gov. Gavin Newsom told airport-security workers he thinks his state can allow working federal employees to receive unemployment benefits. The parties may disagree over priorities and the size of the government, but a shutdown isn’t a practical way to solve that, says University of Illinois law professor Michael LeRoy. “We should all strive to find better solutions than throwing people out of work.”
Hector Dias, one of some 400,000 federal employees who are being asked to work without pay, has a blunt message about the government’s partial shutdown.
“We should not be taken hostage of the political atmosphere,” says Mr. Dias, a Department of Transportation worker in Washington, echoing the concerns of legions of employees deemed too essential to be furloughed. “It’s no fair that we are going through this.”
It’s one thing to miss a paycheck or maybe two. But with each new week in what’s become the longest US-government shutdown, an ethical and legal question has been moving steadily toward the forefront: Is it fair or lawful for government employees to be told to keep working while they are not being paid?
A foundation of economic life, going back at least as far as the biblical parable of the vineyard laborers, is the idea of employer and employee agreeing on a wage and sticking to it. The obligation of employers to pay for work performed is enshrined in federal law, but now it’s running up against a countervailing tradition that calls on vital federal workers to stay on the job even when there’s no money to pay them.
Federal workers faced a setback this week when a US district judge refused to order an immediate resumption of paychecks. But lawsuits on behalf of workers will move forward, and the stakes of the shutdown could rise for both the workers and the American public the longer the political impasse goes on.
Some legal scholars believe the workers have a strong case.
“These lawsuits look to be valid,” says Michael LeRoy, a University of Illinois law professor who focuses on employment matters. “The immediate issue is compliance with the Fair Labor Standards Act. That's a law that all of us recognize – in fact if not in name – as our minimum-wage, overtime, and time-records law. It applies to the federal government.”
So why is this even coming up?
Justification for work without pay
First, of course, is the funding impasse. Portions of the government have been funded by Congress, but others haven’t, as congressional Republicans and Democrats dig in on opposing sides over President Trump’s demand that any new plan to fund the government include at least $5.7 billion for new steel barriers against illegal immigration on the southern border.
But the next part of the story is where the work without pay comes in. Such an impasse results in a shutdown of federal operations, with employees told not to come to work because there’s no money to pay them. Yet the same law that guides such a shutdown, the Antideficiency Act first enacted in the late 1800s, also provides a potentially large exemption from the rule.
Federal workers can be “excepted” in cases of emergency involving the safety of human life or the protection of property. So far in the current shutdown, that has included most workers for the Coast Guard, the FBI, and air-traffic controllers at the Department of Transportation.
With Mr. Trump facing the risk of a public backlash the more key government services are curtailed, his administration has been seeking to reduce the hardship imposed on average Americans. The result is some widening in the definitions of who can be excepted. The Trump administration hopes the pool will include Agriculture Department workers who help farmers get loans and Internal Revenue Service staff who help taxpayers get refunds.
Backlash is building
On Thursday, the National Treasury Employees Union, which represents IRS workers among others, delivered to Senate leadership a petition signed by 17,820 federal employees calling for an end to the shutdown.
“NTEU is also challenging the administration’s ability to require employees to work during the shutdown even if their jobs are not related to protecting human life and property,” it said in announcing the petition Thursday.
While awaiting a resolution, one thing the affected workers can’t do is go on strike (illegal for federal employees).
And a Labor Department official, citing guidance the department gave in a 2013 shutdown, has also ruled out unemployment benefits in general for those who are working without pay. But on Thursday, California Gov. Gavin Newsom defied that view, telling airport-security workers he sees legal footing for his state to allow the benefits. (Federal employees not working due to the shutdown already can file for unemployment.)
“We should be reciprocated for our time and efforts” during the shutdown, says one Department of Justice employee who says she can rely on savings for now but may seek forbearance from creditors if the period of unpaid work persists.
Once a shutdown ends, back pay should start flowing promptly. But workers “may not be able to repair their lives so easily at that point,” says Ruben Garcia, co-director of the workplace law program at the University of Nevada, Las Vegas.
There’s precedent as recently as 2013 for workers to receive not only their back pay but also to win damages in court to compensate for the delay they experienced.
“It's a sound claim that the federal workers have,” Professor Garcia says, although he adds that the gears of the justice system can grind slowly.
Added to the mix, for now at least, is the desire of the judicial branch to avoid any appearance of putting its thumb on the scale of a dispute involving the two other branches of the federal government.
“The judiciary is not ... leverage in the internal struggle between the branches of government,” District Judge Richard Leon said Tuesday in Washington. He said that to grant the request of the NTEU and other federal employees would “create chaos and confusion.”
So far, the shutdown and its effects have drawn a mixed response from the public. Many Americans voice sympathy for the affected workers and support for those in Congress who are seeking bipartisan steps to fund the government. Another sizable chunk of the electorate shows solidarity with Trump’s insistence on fresh steps for border security, or even for the view that the shutdown itself may strike a blow for the conservative cause of smaller government.
“We already see conflicting views,” says Professor LeRoy in Illinois. “We do have federal workers literally marching and protesting. On the other side we have some people [in the private sector] saying ‘Welcome to my world. I got laid off.’ ”
One irony, he says, is that the longer the shutdown runs, the more unfairness may also spread to include every taxpayer. Average Americans will be paying out money to the US Treasury – through paycheck withholding – without getting back the full services they’re paying for.
Other inefficiencies of the shutdown process would also take their toll. Once a shutdown ends, taxpayers could be on the hook for damages to the “essential” workers and to provide back pay to furloughed employees who weren’t working. They’ll also have to cover the costs of operational hiccups as shuttered agencies reopen.
The two political parties may have legitimate disagreements over the focus and size of the government, but finance experts widely agree that a shutdown isn’t a practical way to resolve those. It neither cuts costs nor restructures federal bureaucracies. And for now it’s taking a human toll in the form of unexpected furloughs or unpaid work.
“We should all strive to find better solutions than throwing people out of work,” LeRoy says.