What the latest court decision means for employees seeking 2018 shutdown pay

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The U.S. Court of Federal Claims on Tuesday rejected the government lawyers’ bids to dismiss a lawsuit stemming from the 35-day government shutdown that ended in January 2019. The class action suit seeks liquidated damages for federal employees who went temporarily without pay, but still had to report for work. With more on the ruling and what it means, plaintiff’s attorney Heidi Burakiewicz spoke to Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Heidi, good to have you back.

Heidi Burakiewicz: Thank you for having me.

Tom Temin: So the court dismissed the government’s bid to have the whole thing thrown out. Tell us more about what happened in some detail.

Heidi Burakiewicz: Yes, we’re delighted with the decision. The court denied the government’s motion to dismiss the case and in doing so confirmed, again that the government violated the Fair Labor Standards Act when it failed to pay its essential employees on their regularly scheduled pay days for working during the 35-day government shutdown.

Tom Temin: But this doesn’t prevent the need for a trial on the issues, correct?

Heidi Burakiewicz: Procedurally, the only issue left in the case is whether or not the government is liable for liquidated damages – whether they acted in good faith when they fail to abide by the Fair Labor Standards Act. Procedurally, it’s appropriate to make that decision after discovery. However, we are extremely confident that we will obtain a ruling that the government and not act in good faith and that they are liable for liquidated damages. That’s what the court ruled in the case stemming from the 2013 government shutdown. And certainly if the government was not in good faith for the 2013 shutdown, they aren’t now. They were put on notice that this was an FLSA violation and they went ahead and they violated the law again.

Tom Temin: In arguing against this, they said the government made a good faith effort, because it was proscribed from paying the salaries during that period because of the Anti-deficiency Act, which prevents agencies from spending money without appropriations but the court didn’t buy it.

Heidi Burakiewicz: Right, that argument just rings hollow. Although the government failed to pass an appropriations bill, they still were obligated to follow the Fair Labor Standards Act. And in other shutdowns, they’ve passed legislation. For example, in October of 2013, they passed legislation, the Pay Our Military Act, so that the military and the civilians who support the military would be paid for working during the shutdown. And there’s nothing that prevented the government from doing the same thing during the 35-day shutdown in 2018/2019.

Tom Temin: Got it. And what is the status of the roster of plaintiffs that you have now, how big is it?

Heidi Burakiewicz: We are, over 32,000 plaintiffs have opted into our case already. And this is a really important reminder, the damages for each of the plaintiffs in the case, if they worked their regular schedule is at least $1,160, plus the full value of their overtime. However, this is an opt-in case under the Fair Labor Standards Act. So unlike a traditional class action, employees are only entitled to get damages if they opt into the case. So although we already have 32,000 employees who have opted into the case, if there are any other employees, it’s important for them to do so this month, and we have a website set up: 2018governmentshutdown.com. It’s a quick process to sign up, it only takes a few minutes. But if employees don’t sign up for the case, they will not be eligible to obtain those damages.

Tom Temin: Is it fair to say that in order to be eligible, you must have been working during the period but working without pay, that came afterwards?

Heidi Burakiewicz: Correct. Any federal employee who is considered non-exempt under the Fair Labor Standards Act, who worked during the shutdown and did not get paid on their regularly scheduled pay day is eligible for this case.

Tom Temin: We’re speaking with Heidi Burakiewicz, she’s a partner at the law firm Kalijarvi, Chuzi, Newman & Fitch; and also the plaintiff’s attorney in this latest class action suit. And what do you feel might be the total population and numbers of people eligible in the suit?

Heidi Burakiewicz: The government has estimated in court filings that there were at least 160,000 employees who were deemed essential and had to work during the shutdown.

Tom Temin: Yeah, so that’s, they could be on the hook for a couple of billion dollars at some point.

Heidi Burakiewicz: The damages are going to be considerable. Just for the over 32,000 that we have in the case, that’s 10s of millions of dollars. And I think it’s an important message to send. We’re facing another potential lapse in appropriations just this month. So I urge the government to do what it has to do to make sure that doesn’t happen again. One, so they don’t have other damages, but also so we don’t put federal employees through this tragedy again.

Tom Temin: And what are the big agencies that have the most people that were affected?

Heidi Burakiewicz: Department of Homeland Security, the Department of Justice, FEMA, the Indian Health Service, their hospitals – it’s a really, it’s a long list of agencies.

Tom Temin: It’s ironic in some sense that each successive shutdown over the decades produces a larger and larger percentage of the government that doesn’t actually close even though they don’t get paid. And so the more they do this, the more they’re on the hook for these liquidated damages potentially.

Heidi Burakiewicz: It’s outrageous to me. It’s a blatant violation of the FLSA. And they continue to do it over and over again. We certainly want to send the message that the government can’t treat its workforce like this. It’s just unacceptable.

Tom Temin: And what is the status of the 2013 claims? I mean, that’s a case that was won, that you won, but took years of calculating by the government, by OPM to figure out each individual person’s dollars and cents. Where does that stand now, 2013?

Heidi Burakiewicz: We are at the very end of the damage calculation process. It has been – and I am optimistic that the damages will be able to be calculated in the most current case faster, to the extent that we the government had to figure out how to get all of the payroll records. And you know, we’ve been through that learning process. And we anticipate, I anticipate that this process, this damage calculations process will go much faster.

Tom Temin: And what happens next, in this current case? The judge gave the government until July 29, to respond to your side. What does that mean? What do you expect from them? And then what happens?

Heidi Burakiewicz: Yes, in January, the government has to file an answer to our complaint. And then there’s other procedural issues that we need to resolve. But the next step essentially will be discovery in the case so that we can get information about whether the government acted in good faith, whether their violation of FLSA was willful.

Tom Temin: But that will require the judge to ratify and rule on?

Heidi Burakiewicz: Yes.

Tom Temin: So there’s not a trial, per se, but just a ruling on administrative procedures in the court, is that just to nail down what’s technically happening?

Heidi Burakiewicz: So after the parties engage in discovery at we can either file motions for summary judgment, asking the court to rule about whether the government acted in good faith or whether its violation of the FLSA was willful. If there’s no disputed questions of fact, the judge can just give us a ruling based on our briefing, which is what happened in the case regarding the 2013 shutdown. If there’s questions of fact, if we have to have a trial, that would happen afterwards.

Tom Temin: Got it. So there’s a little bit of a ways to go here, maybe a couple of months, at least until they can start calculating?

Heidi Burakiewicz: Yes, we have to go through the proper procedures. But again, I’m very optimistic that the court will determine that we are entitled to liquidated damages.

Tom Temin: And are you dealing with the same lawyer in the 2013 case now in 2018? Or has the staff on the government side changed?

Heidi Burakiewicz: Ah, yes, it’s the same lawyers at the Department of Justice.

Tom Temin: It doesn’t rise to the level of the current administration getting involved, it sounds like because you had a different crew in 2013 in the White House. So this gets down to the Justice Department staff level?

Heidi Burakiewicz: Well the attorneys who are defending the case are career Department of Justice attorneys, and I cannot speak for DOJ about how high and the government who is involved in the strategy or the decision-making that’s going on.

Tom Temin: Sure, and just curious – and you’ve been on this case, the 2013 case and the 2018/2019 case. Does this fill all of your time as an attorney?

Heidi Burakiewicz: No, but it does keep me very busy. But this case is extremely important to me. This is something that I’ve been living and breathing since October 2013. And I carry with me the stories that federal workers have told me over the years about what the shutdown meant to them, how it affected them. I’m haunted by some of the stories.

Tom Temin: And by the way, how has the pandemic and everybody working at home, has that affected your ability to prosecute the case? Or is it just been something to put up with?

Heidi Burakiewicz: The pandemic is not easy on anyone but it has not affected our ability to prosecute the case or work on it. We are all doing so diligently just from home. It’s certainly been a challenge for everyone. But we are – this case is extremely important to us and we’re continuing to work on it.

Tom Temin: Heidi Burakiewicz is a partner at the law firm Kalijarvi, Chuzi, Newman & Fitch. As always, thanks so much.

Heidi Burakiewicz: Thank you.

Tom Temin: We’ll post this interview at FederalNewsNetwork.com/FederalDrive. Hear the Federal Drive on your schedule. Subscribe on Podcastone or wherever you get your shows.

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