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Forcing federal employees to work during shutdown is a 'clear violation': professor

Erin Fuchs
Deputy Managing Editor

The Trump administration ordered thousands of federal employees back to work without pay on Tuesday, raising questions over whether it is legal in America to make people work for free.

“The Fair Labor Standards Act requires workers to be paid at least the minimum wage for hours they worked in a timely fashion,” said Minna Kotkin, director of the Employment Law Clinic at Brooklyn Law School. “There is a legitimate claim that this... is violating the Fair Labor Standards Act.”

Since the partial government shutdown began on Dec. 22, roughly 800,000 workers have not been paid. One-fifth of the workers make less than $50,000, and they’ve missed an average of $5,000 in pay so far, according to a New York Times analysis.

The shutdown has affected just 25% of the government, but more than 400,000 workers have worked without pay because their tasks are deemed essential to keep the government functioning. The Internal Revenue Service, for example, ordered 36,000 furloughed employees back to work without pay on Tuesday.

Jeffrey Hirsch, an employment law expert and professor at UNC School of Law, noted that these federal agencies are still violating the Fair Labor Standards Act even though they have no choice but to make people work. “They know they’re making people work without pay,” he said. “That’s a clear violation of the FLSA.”

‘You can’t spend money that isn’t appropriated’

The Trump administration has already been hit with multiple lawsuits from federal workers — including two from labor unions and one from a group of federal employees.

The lawsuits claim the federal government is violating the Fair Labor Standards Act, as well as the 13th Amendment, which abolished slavery. Federal workers also assert that the Trump administration is violating the Fifth Amendment because it’s depriving them of their wages without due process.

For its part, the Trump administration is using a 135-year-old law called the Antideficiency Act to justify its failure to pay workers, Kotkin, the Brooklyn Law professor, noted. That law essentially says “you can’t spend money that hasn’t been appropriated,” she said. However, Kotkin noted, it would be more of a stretch for the president to use that law to require people to work while they’re not being paid.

“The Antideficiency Act only goes so far as to say you don’t get paid. It doesn’t say anything about having to work,” she said.

‘We’ve seen this before’

If the Trump administration’s argument seems weak, it may not bode well that furloughed workers forced to work without pay during the 2013 shutdown won a similar lawsuit last year. In February 2017, U.S. Court of Federal Claims Judge Patricia Campbell-Smith ruled that workers deemed essential during the 2013 shutdown should get twice their pay for a five-day period they worked without pay (the standard award under the FLSA).

As Hirsch, the UNC law professor, noted, “We’ve seen this before.”

To be sure, workers in the recent cases faced a setback this week when a judge refused to grant temporary restraining orders that would have either let workers stay home or forced the federal government to pay them.

But Hirsch believes the workers will ultimately receive double their pay under the FLSA, which, he noted, will add to the costs of the government shutdown.

“There are lots of ways a shutdown costs the government more money, and this is one of them. Every hour those... employees work, that’s more financial liability that’s likely to incur,” he said. “It’s just adding to the tally.”

Erin Fuchs is deputy managing editor at Yahoo Finance.