1. How long did the shutdown last?
It started on December 22, 2018 and ended on January 25, 2019.
2. Now that the shutdown has ended, will affected federal employees get paid?
Federal employees affected by the shutdown received back pay for all time that was not compensated during the shutdown. The Government Employee Fair Treatment Act (S. 24) was signed into law on January 16, 2019. The law provided that federal employees affected by the shutdown would be paid “on the earliest date possible” after the end of the shutdown. NTEU aggressively fought for this legislation, which guaranteed payment for both furloughed and excepted employees. This guarantee of payment also applies to future shutdowns.
3. What lawsuits did NTEU lawyers file in connection with this shutdown?
NTEU’s lawyers filed two lawsuits on behalf of the employees that NTEU represents. (a) One is in the U.S. Court of Federal Claims. Avalos, et al. v. United States (Fed. Cl. 2019). That suit (the subject of this webpage) seeks compensation under the Fair Labor Standards Act (FLSA) for NTEU-represented employees who worked during the shutdown but who were not paid on time. (b) The second lawsuit was filed in the U.S. District Court for the District of Columbia. NTEU v. United States, et al., No.19-cv-50 (D.D.C. 2019). That suit alleged that the shutdown violated the Constitution as well as a statute called the Antideficiency Act. The second suit was dismissed on mootness grounds on March 16, 2020. The Court's decision did not address whether the shutdown was contrary to law.
4. Why did NTEU file two lawsuits?
The lawsuits seek different relief. Claims against the United States for money generally have to be brought in the U.S. Court of Federal Claims. Since the FLSA suit seeks compensation for affected employees, we filed that suit in Federal Claims court. The second suit asked that the shutdown be declared unlawful under the U.S. Constitution. A constitutional or statutory lawsuit for declaratory and injunctive relief generally belongs in federal district court.
5. If the shutdown has ended and if affected employees have been paid, are the lawsuits moot?
The Avalos lawsuit in the U.S. Court of Federal Claims is not moot. This suit seeks two types of compensation pursuant to the FLSA. First, it seeks back pay for employees who were not timely paid during the shutdown. This part of the lawsuit is indeed moot because payments have been made to affected employees.
But the second part of the lawsuit asks for a matching amount of 100% “liquidated damages” for employees. That part of the lawsuit remains. The FLSA provides for “liquidated damages,” a concept like interest, for the compensation that working federal employees did not receive on time during the shutdown. NTEU is asking the court for liquidated damages to (1) match any overtime that affected employees did not receive on time; and (2) match the minimum wage payment that the FLSA requires that employees receive on time. Accordingly, although employees affected by the shutdown have been paid their back pay, including overtime, NTEU will keep fighting for an additional amount of matching liquidated damages to compensate employees for this untimely payment.
NTEU’s second suit in federal district court, in which we alleged that shutdowns such as the 2018-19 shutdown are unlawful, has been dismissed on mootness grounds. NTEU is disappointed with the Court's ruling and disagrees with it because shutdowns are, unfortunately, likely to recur at some point.
6. What is the status of NTEU's lawsuit in the Court of Federal Claims?
The government moved to dismiss the Avalos suit, as well as 12 other similar suits filed by individuals and unions. NTEU counsel filed an opposition to the government's motion to dismiss on May 31, 2019. The government also filed several supplemental briefs to which NTEU's lawyers responded. On December 9, 2020, the Court denied the government's motion to dismiss. The Court held, contrary to what the government argued, that the FLSA requires employers to pay employees "on the employee's next regularly scheduled payday."
The government asked the Court to certify its decision on the motion to dismiss for interlocutory review, which means that decision would go to the appellate court now instead of at the end of the litigation. NTEU agreed to the government's request because it would benefit all parties to know sooner rather than later if the appellate court believes (as NTEU does) that the lower court's legal ruling is correct. The Court granted the government's request on February 23, 2021. For efficiency's sake, the Court has stayed most of the case during this interlocutory review phase.
The U.S. Court of Appeals for the Federal Circuit, which is the appellate court, consolidated the petitions that had been filed by the government in Avalos as well as the related other suits. The Federal Circuit granted the government's request for interlocutory review in Avalos and the consolidated cases on June 3, 2021. The parties will now brief legal issues concerning the government's liability under the FLSA and the Antideficiency Act. The government's brief was filed August 30, 2021 and the Avalos plaintiffs filed their responsive brief on behalf of themselves and the plaintiffs in the related suits on October 28, 2021. The government’s appeal is now fully briefed and the parties are awaiting a date for oral argument from the Federal Circuit.
Opting in to NTEU's Lawsuit
7. I am a federal employee represented by NTEU who worked during the shutdown but did not get paid on time. Do I need to join these lawsuits?
Eligible employees in NTEU-represented agencies who worked during the shutdown must have opted in to (that is, joined) the FLSA lawsuit in order to become eligible for any remedy that results from this case. The opt-in period in Avalos closed in December 2020.
8. My employer did not designate me as “excepted” but still required me to work during the shutdown. Can I opt in?
Yes, employees in this situation should have opted in.
9. I was designated as excepted but ended up being sick and so did not work during the shutdown. Can I still opt in?
No. The suit only covers employees who worked during the shutdown at their agencies’ direction.
10. Since the shutdown, I have retired or switched jobs. Can I still opt in?
You could have opted in if, during the shutdown, you were in a BU represented by NTEU, worked without being timely paid, and were FLSA nonexempt, even if your job changed after the shutdown.
11. Is there a deadline to opt in to the FLSA lawsuit?
Because of statute of limitations concerns, eligible employees should have opted in to the lawsuit by December 2020. The opt-in period is now closed.
12. Does it matter if I am competitive service or excepted service?
No. But it does matter whether you were required to work during the shutdown. Employees who were required to work during the shutdown may have been called "essential" or "excepted" (but this is different from being designated as competitive versus excepted service). Only employees who worked during the shutdown, and were not paid on time, were eligible to join.
13. I worked during the shutdown but I was paid on time. Can I still join?
No. The FLSA only allows us to recover liquidated damages for employees who were not paid either the federal minimum wage or overtime on time during the shutdown. Therefore, employees who were required to work, but who were paid overtime or at least the minimum wage on time, cannot join this lawsuit. Employees whose agencies are funded by non-appropriated funds and who were paid on time during the shutdown might fall into this category.
14. If I decide to “opt in” and join the FLSA lawsuit, will I have to pay attorneys’ fees out of my recovery?
Neither NTEU nor Bredhoff & Kaiser will ask any employee that they represent to pay any attorneys’ fees, either up front or out of his or her recovery.
15. Why are only FLSA “nonexempt” employees eligible to opt in?
We are limited by the terms of the statute. The FLSA provides a cause of action for employees who are not paid on time, but it only provides a cause of action for employees covered by that statute (that is, employees who are FLSA nonexempt).
16. I am covered by the Federal Employees Pay Act, not FLSA. Can I opt in?
No. This lawsuit only applies to FLSA covered employees.
17. I am FLSA “exempt” but I think that classification is wrong. How do I change it?
This lawsuit cannot effect changes to employees’ FLSA classification. Any challenge to an FLSA classification would need to be done at the local level. Contact your chapter representative if you believe you have a basis to challenge your FLSA classification.
18. I’ve heard there are other FLSA lawsuits in the Court of Federal Claims. Must I opt in to those as well?
No. At least 12 other FLSA lawsuits have been filed in the U.S. Court of Federal Claims. These lawsuits also seek compensation under the FLSA for employees who worked but were not paid on time, as well as liquidated damages. There is, however, no reason to opt in to more than one suit.
19. I’ve already opted into another lawsuit. Does that matter? Do I have to withdraw from that one?
No, you do not need to withdraw from the other lawsuit that you opted in to.
20. Can I recover more if I opt into more than one lawsuit?
No. Employees will not be able to recover under more than one lawsuit.
21. How long will it take for the Court of Federal Claims case to result in payment?
We don't know yet. As is true in every litigation, success is not certain. The case is now before the U.S. Court of Appeals for the Federal Circuit as a result of the government's petition for interlocutory review, briefing and argument will take several month. A similar case filed in connection with the 2013 shutdown did result in a favorable judgment for employees, but calculations of amounts owed to all of those who joined that case have not yet been completed.
22. I heard that the FLSA case covers only CBP employees. Is that true?
No, it applies to employees in multiple agencies represented by NTEU. The Avalos suit is on behalf of any FLSA nonexempt employee who worked during the shutdown without timely pay in a bargaining unit for which NTEU serves as the exclusive representative.
23. If I decide to opt in and join the FLSA lawsuit, could I face retaliation at my job?
It is illegal for any employer to discharge or discriminate in any way against any employee who files a complaint and participates in an FLSA suit. If you believe that you have faced retaliation for joining NTEU’s lawsuit, contact your chapter representative immediately.
Post Shutdown Pay
24. I worked both regular shifts and overtime during the shutdown. Will I be paid both my regular pay and overtime pay for the shutdown period?
Yes. Under the Government Employee Fair Treatment Act, employees affected by the shutdown (whether they were furloughed or required to work) should have received all the back pay they are owed, including any overtime.
25. I am a federal employee who was on furlough during the shutdown. Will I recover under these lawsuits?
You are not entitled to receive any monetary compensation under these lawsuits. The FLSA lawsuit seeks compensation for employees who were forced to work without timely pay. You should have, however, received the back pay you otherwise would have earned during the shutdown under the Government Employee Fair Treatment Act.
26. Who do I contact with questions about the FLSA litigation?
27. In addition to filing these lawsuits, what else did NTEU do in response to the shutdown?
NTEU worked constantly with our allies on Capitol Hill to end the shutdown and to ensure that all employees denied pay during the shutdown were fully paid. We were very pleased that Congress enacted the Government Employee Fair Treatment Act to guarantee payment for shutdown-affected employees. NTEU will also continue its efforts to avoid future shutdowns.