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?
Yes. The Government Employee Fair Treatment Act (S. 24) was signed into law on January 16, 2019. The law provides that federal employees affected by the shutdown will be paid “on the earliest date possible” after the end of the shutdown, i.e., January 25, 2019. NTEU aggressively fought for this legislation, which guarantees 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 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. This 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?
NTEU’s 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 other unions. The government argued that it had a good basis under the law for not paying employees overtime or minimum wages on time during the shutdown. NTEU filed an opposition to that motion on May 31, 2019, arguing that the government’s obligation to pay overtime and minimum wages on time is clear under the FLSA. The government has filed several supplemental briefs to which NTEU has responded. NTEU is hopeful that the court will either schedule oral argument or rule on the government’s motion soon.
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 opt in to (or join) the FLSA lawsuit in order to become eligible for any remedy that results from that case. Note: to be eligible to participate in the FLSA suit, employees must have worked during the shutdown. Employees must also be covered by the FLSA (that is, be FLSA “nonexempt”). You can see if you are FLSA “nonexempt” by looking at box 35, labeled “FLSA category,” on your SF-50. If box 35 has an “N,” then you are nonexempt and can participate.
8. My employer did not designate me as “excepted” but still required me to work during the shutdown. Can I opt in?
Yes, you should opt 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 actually worked during the shutdown at their agencies’ direction.
10. Since the shutdown, I have retired or switched jobs. Can I still opt in?
You can opt in if, during the shutdown, you were in a BU represented by NTEU, worked, and were FLSA nonexempt, even if your job changed after the shutdown.
11. Is there a deadline to opt in to the FLSA lawsuit?
The court has not set a deadline but there is a risk that the statute of limitations will expire in mid-December 2020. Therefore, eligible employees should have opted in by November 13, 2020, so that NTEU can file those opt-in forms with the Court before mid-December.
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 v. excepted service). Only employees who worked during the shutdown, and were not paid on time, can 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. You can contact your chapter representative if you think 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 this point, several 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. And, if we prevail in the Court of Federal Claims, the government may appeal to the U.S. Court of Appeals for the Federal Circuit. A similar case filed in connection with the 2013 shutdown did result in a favorable judgment for employees, but calculations of amounts owed to 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. The NTEU suit is open to any FLSA nonexempt bargaining unit employee who, during the opt in period, worked during the shutdown in a 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. The constitutional lawsuit sought declaratory and injunction (non-monetary) relief and has been dismissed. You will, however, have 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.