A partial government shutdown over border wall construction could yield double pay for thousands of federal workers if Congress and President Trump reach an impasse Friday night, the deadline for a budget deal.
“Essential” workers who must show up for duty during a shutdown and furloughed workers who stay home are routinely re-compensated by Congress for lost earnings. But essential workers can also sue to receive double pay.
That’s because if employees aren’t paid on time for work they’ve done, the Fair Labor Standards Act allows “liquidated damages” that could double a worker’s pay.
But there’s a catch. To get double pay, their average earnings over the pay period must fall below minimum wage rate. For example, if they are only unpaid for a day, they may earn enough over the rest of the period so that their earnings exceed the minimum wage. The more days they are off, the better their chances of obtaining double pay. Damages for work up to a standard 40-hour week are pegged to the minimum wage.
Also, essential employees who work overtime are entitled to be paid double the overtime amount, no matter if they have exceeded the minimum wage rate. So employees deemed “essential” who are not furloughed and must work this Saturday would be entitled to damages and get paid twice.
“People deemed essential generally work overtime,” attorney Heidi Burakiewicz said.
Nevertheless, if there is a lawsuit seeking double pay, workers are unlikely to see the money for years.
Despite a legal win nearly two years ago, the nearly 25,000 workers represented by Burakiewicz after the 2013 shutdown don’t yet know how much they will get — or when. Government officials are still working on calculations.
And workers have a more immediate concern, with about 420,000 “essential” workers facing arbitrary cancellation of Christmas vacations. With Christmas on next Tuesday, “the timing of it is exceptionally bad,” said Burakiewicz.
For late pay, there’s a clear legal route to — ultimately — getting double pay, but it’s not immediately clear what legal recourse workers would have to recoup money wasted on canceled trips or use-it-or-lose-it leave time.
Although there are more than 2 million federal employees, only about 800,000 risk pay disruptions as Trump and Senate Minority Leader Chuck Schumer, D-N.Y., spar over funding for the border barrier.
Roughly 420,000 federal employees would be deemed “essential” and forced to work if there’s a shutdown. Another 380,000 are expected to be furloughed.
Only some federal agencies will shut down if there’s an impasse. A September funding bill provided a full-year allocation for the Pentagon and some other agencies, including the departments of Labor, Education, and Health and Human Services.
If there’s a shutdown, all scheduled leave would be canceled, meaning arbitrary cancellation of vacations or other time off.
“You have people who save up all year long to go on their once a year vacation, and God only knows what happens to those people,” Burakiewicz said.
During the 2013 shutdown, Burakiewicz said other forms of leave were canceled, including a Bureau of Prisons worker’s maternity leave. Burakiewicz, who has worked closely with public-sector unions, said many workers have “use it or lose it” leave that could be lost at the end of the year.
