Customs and Border Protection agents at the Paso del Norte International Bridge in Ciudad Juárez, Mexico, on Jan. 9. CBP agents are suing over being required to work without pay during the government shutdown.

WASHINGTON — Lawsuits filed by federal employees forced to work without pay are stacking up as the partial shutdown grinds on, even as the government is still calculating how much money it owes workers who sued during the last major shutdown in 2013.

Three lawsuits have been filed to date over the most recent shutdown, which began in late December. In two cases, federal employees classified as “excepted,” which means they still have to work without pay, allege the government is violating the Fair Labor Standards Act, which lays out the rules for how employers must pay employees. The third case, a broader constitutional challenge to requiring workers to be on the job without pay, was filed Wednesday.

During the 2013 shutdown, which lasted 16 days, federal employees sued as well. The case, Martin v. USA, provides a roadmap for how these new cases could play out — and how long it could take. The federal workers in the Martin case won, and a judge in 2017 ordered the federal government to pay damages in the amount of minimum wages and overtime the workers weren’t paid at the time, in addition to back pay they already received.

According to a report filed in court Dec. 17, the Justice Department is still working with federal agencies to pull payroll data needed to figure out how much each individual employee involved in the Martin case should get. More than 24,000 workers opted to participate in the case, although not all may be eligible for an award.

After the 2013 shutdown ended, Congress passed legislation to reimburse federal employees for missed pay. But a judge ruled that the government still separately owed workers damages for violating federal labor law. Heidi Burakiewicz, the lead attorney in the Martin case, told BuzzFeed News that the damages are for the harms of not being paid on time and the inability to plan finances accordingly — things like late fees and interest charges.

Senate Democrats have estimated more than 420,000 federal employees are working without pay during the latest partial government shutdown, while another 380,000 are furloughed — meaning they cannot work at all.

Burakiewicz is handling one of the new lawsuits along with the American Federation of Government Employees. She told BuzzFeed News that she was optimistic the latest round of cases would move faster than the 2013 litigation, although their scope might be different depending on how long the shutdown lasts and how many workers are ultimately affected.

“We litigated the legal issues in 2013, and they’re identical,” Burakiewicz said. “From my perspective, there are no factual differences that would bear on the legal determination.”

Burakiewicz’s case and a lawsuit filed this week by the National Treasury Employees Union (NTEU) were assigned to the same judge handling the Martin case, Judge Patricia Campbell-Smith. The cases were filed in the US Court of Federal Claims, which handles lawsuits against the US government that include money claims.



The 2013 shutdown lasted from Oct. 1, 2013, to Oct. 16, 2013. In the Martin case, Campbell-Smith first sided with federal workers in July 2014, when she denied the government’s bid to get the case dismissed. The judge concluded that when the government missed a scheduled payday, an employee had a claim under the Fair Labor Standards Act.

In February 2017, Campbell-Smith ruled that the government was responsible for paying damages. She wrote that the Antideficiency Act — the federal law that prohibits the government from paying money not appropriated by Congress but carves out exceptions that allow the government to require certain employees to work — didn’t excuse the government from complying with federal wage laws.

Under the Fair Labor Standards Act, the judge wrote, an employer wouldn’t be responsible for damages if they showed they acted in “good faith” and had “reasonable grounds” for believing they weren’t violating labor law. But she found that federal officials didn’t make any effort to explore how they could comply with labor laws during the 2013 shutdown, or seek a legal opinion on the issue, instead just relying on the Antideficiency Act. That wasn’t enough, she concluded.

“Because the government admittedly took no steps to determine its obligations under the FLSA during the 2013 shutdown, no disputed and material facts exist, and the court cannot find that it acted in good faith,” the judge wrote.

The lawsuit filed this week by the NTEU — it originally filed suit Monday, and then told BuzzFeed News it was replacing that case with a new version with different plaintiffs on Wednesday — contends the Martin case put the government on notice that failing to pay wages on time violates labor laws. The union is arguing that as a result, the government wasn’t acting in “good faith” and did not have “reasonable grounds” to believe missing a payday now wouldn’t violate the law.

The NTEU case was filed on behalf of two Customs and Border Protection officers required to work without pay during the shutdown. They weren’t paid for overtime work on Dec. 22, and, assuming the government is still shut down, don’t expect to be paid on time for the two-week pay period that ended Jan. 5.

Burakiewicz’s case was filed on behalf of two Bureau of Prisons employees who also didn’t receive overtime pay for Dec. 22. As the shutdown goes on and more paydays are missed, these cases could be updated to add more plaintiffs and to expand the extent of missed wages.

The NTEU also filed a lawsuit Wednesday in the US District Court for the District of Columbia claiming the Antideficiency Act is unconstitutional. The law says that even in the absence of a congressional appropriation, the government can require employees to work in “emergencies involving the safety of human life or the protection of property.” The union argues this conflicts with the Constitution’s Appropriations Clause, which prohibits the government from taking on any obligation to pay money that Congress hasn’t appropriated.

The union is also arguing the Trump administration is adopting too broad an interpretation of what qualifies as “emergencies” that require federal employees to work. Greg O’Duden, a lawyer with the union, said in a phone interview with BuzzFeed News that bringing IRS employees back to work on tax refunds, for instance — President Donald Trump has said refunds won’t be affected — shouldn’t qualify as an “imminent threat to life and to property.” He said that making workers come back for these types of functions “delays the true effect of the shutdown.”

“We don’t have funds, but the government is basically purporting to give people IOUs for payment, who knows when,” O’Duden said.

A Justice Department spokesperson declined to comment.