Can U.S. Make Staff Work Without Pay? Judge Could Force Its Hand

(Bloomberg) -- A federal judge on Tuesday will decide whether to grant a temporary order requiring the U.S. to pay its workers or let them stay home or work elsewhere for wages, as the partial government shutdown -- already the longest in American history -- enters its 25th day.

Senior Judge Richard Leon in Washington is considering three lawsuits filed this month in which workers claim that their being forced to work without pay violates the U.S. Constitution and the Fair Labor Standards Act, among others.

Plaintiffs and Claims

  • Plaintiffs include the National Air Traffic Controllers Association (Natca) and the National Treasury Employees Union (NTEU), which represents 150,000 federal workers across 33 agencies, as well as four individuals represented by a Department of Transportation employee, Janette Hardy.
  • NTEU has challenged an exception to the Antideficiency Act that addresses people’s safety and the protection of property. The union argues that a budget directive the administration issued just before last year’s brief shutdown impermissibly broadened the exception to sweep in “the ongoing, regular functions of government.”
  • Natca’s complaint warns of safety lapses and calls its workers’ pay their property, protected by the Constitution. “America wants its air traffic controllers to be laser-focused on landing planes safely and monitoring America’s runways, not distracted by financial issues ... caused by the government’s unlawful taking of their property without due process,” it says.
  • Air Traffic Control Specialist Hardy said the government’s demand that employees work without pay -- on pain of punishment if they fail to show up or seek gainful employment elsewhere -- violates the 13th Amendment’s prohibition against involuntary servitude.
  • The U.S. hadn’t filed a formal reply as of Monday evening.

Key Insights

  • A temporary restraining order, with its threat of court-ordered sanctions, would increase the pressure on President Donald Trump to find common ground with Congress. Half or more of Americans blame the president and his party for the impasse, according to six public opinion polls taken since the shutdown began, while only a third or fewer blame Democrats, who have already approved funding resolutions.
  • The failure to secure a TRO, meaning no immediate relief for federal workers caught in the middle of the historic struggle, may render the trio of lawsuits moot. A TRO is typically good for 14 days, perhaps longer than the crisis will endure. That’s what the plaintiffs say they need -- help right now.

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Get Down to Cases

  • The lead case of those before Leon is National Treasury Employees Union v. U.S., 19-cv-50, U.S. District Court, District of Columbia (Washington).
  • Also pending in Washington federal court is National Air Traffic Controllers Association v. U.S., 19-cv-62, and Hardy v. U.S., 19-cv-51.

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