Federal Employees’ Union Sues Trump Administration Over Work Without Pay

The government shutdown continues as President Trump prepares to meet with congressional leaders just one day before Democrats take control of the House. President Trump has insisted on including $5 billion for border wall funding before he’ll agree to sign any spending measure. Eight hundred thousand government workers’ lives have been thrown into disarray by the shutdown, with 380,000 workers on furlough and 420,000 who have worked without pay since December 22. We speak with a federal workers’ union that is suing the Trump administration over the shutdown. The American Federation of Government Employees, or AFGE, says it is illegal for federal workers to work without pay. We speak with Heidi Burakiewicz, lead attorney in the lawsuit, and David Borer, general counsel for AFGE.

Transcript

JUAN GONZÁLEZ:The government shutdown enters its 12th day as President Trump prepares to meet with congressional leaders just a day before Democrats take control of the House. President Trump has insisted on including $5 billion for border wall funding before he’ll agree to sign any spending measure.

Trump tweeted Tuesday, quote, “Border Security and the Wall ‘thing’ and Shutdown is not where Nancy Pelosi wanted to start her tenure as Speaker! Let’s make a deal?”

Eight hundred thousand government workers’ lives have been thrown into disarray by the shutdown, with 380,000 on furlough and 420,000 who have worked without pay since the House and Senate failed to pass an end-of-year spending bill on December 22nd.

This is President Trump speaking to Fox News on New Year’s Day.

PETE HEGSETH: So, how far are you willing to go, Mr. President? When do you anticipate talks with Chuck and Nancy, as you say, sir?

PRESIDENT DONALD TRUMP: Well, I assume when they get back. I’m in Washington. I’m ready, willing and able. I’m in the White House. I’m ready to go. They can come over right now. They could have come over anytime. I spent Christmas in the White House. I spent New Year’s Eve now in the White House. And, you know, I’m here. I’m ready to go. It’s very important. A lot of people are looking to get their paycheck. And so I’m ready to go anytime they want. No, we are not giving up. We have to have border security. And the wall is a big part of border security—the biggest part.

JUAN GONZÁLEZ: This comes as Trump has issued an executive order freezing federal workers’ pay, eliminating a 2.1 percent pay raise that was set to kick in in January.

AMY GOODMAN: Well, we turn now to look at a federal workers’ union that’s suing the Trump administration over the shutdown. The American Federation of Government Employees, or AFGE, says it’s illegal for federal workers to be forced to work without pay.

In Washington, D.C., we’re joined by two guests. David Borer is general counsel at the American Federation of Government Employees. And Heidi Burakiewicz is the lead attorney in a lawsuit suing the federal government on behalf of members of the AFGE and federal employees being forced to work without pay during the partial government shutdown. She’s a partner at the law firm Kalijarvi, Chuzi, Newman & Fitch.

We welcome you both to Democracy Now! David Borer, let’s begin with you. I spent a lot of time in airports this weekend, and I talked to a lot of TSA agents. They’re all being forced to work without pay. Can you explain how this is legal in any way?

DAVID BORER: Well, good morning, Amy. That’s right. We represent 42,000 TSAworkers. And, yes, they are being forced to work without pay. They’ve been designated as essential employees. And there is no pay for them or other—the furloughed employees because of the lapse in appropriations when the spending authority ran out before the holidays. So, yes, they’re being forced to work without pay, 400,000 federal employees coming to work every day in essential services like TSA, like the Bureau of Prisons, like food inspectors and so forth, and yet no promise even that they will ever be paid for this.

JUAN GONZÁLEZ: Well, Heidi Burakiewicz, this is not the first time this has happened. Can you talk about the lawsuit that was previously filed on this issue—I think it was back in 2013—and how far that got along the way in terms of legally deciding the government’s power in regard to these shutdowns?

HEIDI BURAKIEWICZ: Yes. Good morning. The lawsuit that we filed just a few days ago alleges that the government is violating the Fair Labor Standards Act. It’s a Depression-era law that sets the basic floor and minimum for worker protections in this country. It applies to all employers, including the United States of America.

In 2013, after the government shutdown in October 2013, we filed a similar lawsuit also alleging a violation of the FLSA. In response to the government’s motion to dismiss, the judge determined that in fact the government had violated the FLSA. The only issue left in the case was whether or not the government was liable for liquidated damages. The court subsequently ruled that the government had not acted in good faith when it required all of these essential workers to go to work and not get paid on their regularly scheduled payday during the shutdown. And that’s exactly what’s happening again now.

AMY GOODMAN: We’re going to go to a break and then come back to this discussion with Heidi Burakiewicz, lead attorney in a lawsuit against the federal government on behalf of the workers, and David Borer, the general counsel for AFGE. That’s the American Federation of Government Employees. About 800,000 workers are being forced to work without pay or are furloughed right now. Those that are furloughed will not be paid for this time. This is Democracy Now! Back in a minute.

[break]

AMY GOODMAN: “Somebody Changed the Lock” by Dr. John. This is Democracy Now! I’m Amy Goodman, with Juan González. The government shutdown enters its 12th day today as President Trump prepares to meet with congressional leaders just a day before Democrats take control of the House. Eight hundred thousand government workers’ lives have been disrupted by the shutdown—380,000 workers on furlough, 420,000 who have worked without pay since December 22nd.

JUAN GONZÁLEZ: President Trump has insisted on including $5 billion for border wall funding before he’ll agree to sign any spending measure. On Christmas Day, Trump said the partial government shutdown will last until Democrats agree to $5 billion in border wall funding, despite his campaign pledge that he would make Mexico pay for a wall.

PRESIDENT DONALD TRUMP: I can’t tell you when the government’s going to be open. I can tell you it’s not going to be open until we have a wall, a fence, whatever they’d like to call it. I’ll call it whatever they want, but it’s all the same thing. It’s a barrier from people pouring into our company—into our country, from drugs. It’s a barrier from drugs. … The only way you’re going to do it is to have a physical barrier, meaning a wall. And if you don’t have that, then we’re just not opening.

AMY GOODMAN: In Washington, D.C., still with us, David Borer, general counsel of the American Federation of Government Employees, and Heidi Burakiewicz, lead attorney in a lawsuit suing the federal government on behalf of federal workers.

Now, he’s talking about the wall for security, David. I mean, this is an astounding story. You have all of these people in charge of security, like the TSA agents at the airports, like the border agents on the border. None of them are being paid.

DAVID BORER: That’s right. And we view the Trump shutdown as another example of what happens when the government plays politics with the federal workforce. If you remember the government shutdown in 1995 and ’96, Newt Gingrich said part of the reason for it was that President Clinton had not talked to him on their way back from Yitzhak Rabin’s funeral on Air Force One, and he felt snubbed, and therefore he shut down the government. This time, even though in the first two years of his administration the Republicans controlled both houses of the Congress, President Trump was unable to get funding for his supposed wall, and now he’s throwing a tantrum, much like Newt Gingrich did, and making federal employees pay the price.

JUAN GONZÁLEZ: And, David Borer, what about this freeze on the cost-of-living increases that workers were supposed to receive in January? Again, this is not the first time this has happened, and it’s happened not just under Republican presidents but also under Democratic presidents, that the White House has used pay—scheduled pay increases for federal workers to, in essence, raid the federal workers’ money in order to deal with other issues in the budget.

DAVID BORER: That’s right. We’ve said they’ve used the federal employees’ pay and benefits as an ATM for many years. There was pay freezes under the Obama administration, and now President Trump has stopped the pay increase that was already slated for 2019. We still have broad support in the Congress for that pay increase, so we’re hopeful, and we’re working every day to revive that in the new Congress. But, yes, it’s part of a pattern where the politicians try to balance their books on the backs of federal workers.

AMY GOODMAN: Heidi Burakiewicz, can you talk about the working people who are not being paid right now, from the airports—the busiest time, the holiday time—to the prisons?

HEIDI BURAKIEWICZ: Yes. The named plaintiffs in the lawsuit both work for the Federal Bureau of Prisons. They have extremely dangerous jobs. Over the last two years, the prisons—the Federal Bureau of Prisons has become incredibly understaffed, critically understaffed. So these people who are working dangerous jobs are also having to work excessive amounts of overtime. And they’re having to do it, and they don’t know when the shutdown is going to end, when they’re going to get their next paycheck. I can’t imagine what it’s like to walk into a federal prison and not know if today is the day something bad is going to happen, and also be worried about how I’m going to pay my mortgage, when I’m going to get my next paycheck, how I’m going to buy groceries for my kids.

It’s not just the Federal Bureau of Prisons. As David said, it’s TSA workers, during the busiest time of the year in the airports, federal law enforcement, federal firefighters—all of the people who we think of as first responders.

JUAN GONZÁLEZ: And, David Borer, assuming this thing is resolved soon, hopefully, or in the next week or two, what’s the historical record in terms of how people are made whole? Will Congress pass a budget resolution that, in essence, provides back pay to both those who worked without pay as well as those who were furloughed? What’s been the usual procedure?

DAVID BORER: That’s right. We will work closely with our key members of Congress. And in past shutdowns, they’ve adopted, along with the resolution to reopen government, funding for back pay for both those who are working without pay and for those who are furloughed through no fault of their own and sitting home with no prospect of their next paycheck.

AMY GOODMAN: So, talk about who essential workers are and how it’s decided who gets—who is forced to pay. And, Heidi, I wanted to ask you about overtime. Are workers who are not being paid right now also being forced to work overtime? So, who gets furloughed, and who has to work without pay?

HEIDI BURAKIEWICZ: Well, the employees who are determined to be essential are literally just that. They are the essential people that are needed to keep our country functioning, to keep the rest of us safe—as I mentioned before, the people that run the Federal Bureau of Prisons—there’s approximately 120 federal prisons around the country—TSA, federal law enforcement. And so, these people are absolutely working during the shutdown without pay.

And they are required to work overtime. One of the named plaintiffs in the case went into work at 4 p.m. on New Year’s Eve, expecting to get off at 12 a.m. Because of the understaffing, he was mandatoried and had to stay until 8 a.m. the next morning. That’s happening routinely. And all of these employees are not getting paid for it while they’re doing this work.

AMY GOODMAN: And, of course, when you have understaffed prisons, you have less safe prisons for the prisoners, as well.

HEIDI BURAKIEWICZ: Absolutely.

JUAN GONZÁLEZ: And, David Borer, this whole issue of which—this is a partial shutdown. There are many government agencies that are functioning. We all saw all of the press releases over NASA’s recent flight. Could you talk about how the decision is made which agencies are to be closed down or not funded and which continue to function?

DAVID BORER: Yeah, it’s all about the appropriations process in Congress. And about half of the government, or more than half, actually, is already funded separately, through congressional action that was approved at some point earlier that’s still in effect. So, for example, you mentioned NASA, the Social Security Administration, the VA—those are all running as usual, on the basis of funding that was approved separately at an earlier time. As it happened, the appropriations bill for the Department of Homeland Security and some of these other departments—Agriculture and several others—was what was expiring here at the end of the year, and so those are the agencies now that are affected by this.

JUAN GONZÁLEZ: And could you talk about this whole issue of constantly doing continuing resolutions instead of actually getting an annual budget approved so that both the agencies and their employees can have some sense of security in terms of their revenue streams?

DAVID BORER: I wish I had the solution for that. Our politics are such that, you know, getting an actual government-wide budget resolution passed and approved by the president has been virtually impossible for a long time. And so, we’ve fallen into this sort of bad habit of operating the government on continuing resolutions. And that sets us up for, each time the continuing resolution is about to expire, it’s an invitation for the politicians to play games with their pet projects and jeopardize the incomes and livelihoods of our workers.

AMY GOODMAN: I wanted to ask you about the impact of the shutdown on the national parks. The Washington Post reporting, quote, “The government shutdown has left America’s national parks largely unsupervised. No one is at the gate. No one is collecting a fee. The visitor centers are closed. There are some law enforcement and emergency personnel on site, but certainly nothing as standard as a park ranger who can answer a question. People are streaming into the parks, enjoying the free access, but they’re finding trash cans overflowing and restrooms locked. Vault toilets are not serviced, and there’s hardly a flush toilet to be found anywhere. If nature calls—well, the woods are over that way,” they quote. The Los Angeles Timesreporting parts of Yosemite National Park, as people are just using the ground as toilet, have had to be closed for public safety reasons.

Heidi Burakiewicz, if you could talk more about this and other workers around the country that people might not think about? And then, although you’re suing on behalf of federal workers, like the prison workers, you’ve got the corollary effects. This are the private sector that serve the federal workers that usually go to work.

HEIDI BURAKIEWICZ: Yes. Well, the federal employees that I represent, the federal workers that I know, they take great pride in their job. And no one is happy, whether it’s the furloughed employees who are sitting at home who are not able to take care of the national parks or it’s the people who are going to work because they’re essential and doing a dangerous job. This is an example of dysfunction at its best. And what we want is for the shutdown to end and these employees to be able to get back to work, taking care of the parks and the rest of our country, and know when they’re going to get their next paycheck.

AMY GOODMAN: So, what do you expect to come out of your lawsuit now? Has the government responded? And what do understand is happening at this meeting today between President Trump and the Republican and Democratic legislative leaders?

HEIDI BURAKIEWICZ: As far as the lawsuit, the next step will be that the government will file a responsive pleading. So, we don’t expect anything to happen with the lawsuit in the next day or two, for example.

I can’t underestimate, however, that the federal workforce has already been severely harmed by the shutdown and how long it’s lasted thus far. They don’t know when it’s going to end, and they don’t know how to budget for their own finances, because they don’t know when they’re going to get another paycheck. The creators of the FLSA, back in the Depression, made the decision that the workforce should be able to depend on when they’re going to get their paychecks, so that they can schedule their own finances, take care of their own affairs. And this is a blatant violation of the law. As the judge said in our 2013 case, the government just didn’t act in good faith when it didn’t take steps to make sure that these workers are getting paid on time.

JUAN GONZÁLEZ: And is there potential for damages on top of the back pay, if this lawsuit goes to an actual trial?

HEIDI BURAKIEWICZ: Absolutely. The FLSA provides for liquidated or double damages. And that’s to compensate the employees for interest charges, late payment fees and the stress that they’re going through now of not getting their pay on time.

AMY GOODMAN: David Borer, your final comment as we go out today and as Trump prepares for this meeting, blaming the Democrats, particularly Nancy Pelosi—has dropped Charles Schumer from the blame at the moment—and going into this meeting now? Though he said he would take the blame for this, of course, he is now putting the blame on others.

DAVID BORER: Well, he’s attempting to, but we view this as the Trump shutdown, and I think it’s obvious to everybody. The last spending bill was approved overwhelmingly in Congress with partisan support. I think it was unanimous in the Senate. And that’s such a rare thing, we should take note of that. The only holdup at this point is President Trump.

And, you know, too bad about his wall, but if he couldn’t get it through the Republican Congress, he’s not going to get it through a Democratic House. And it’s time to let federal workers go back to work, and pay them on time.

AMY GOODMAN: David Borer, we want to thank you for being with us, general counsel for AFGE. Heidi Burakiewicz, the lead attorney in a lawsuit suing the federal government on behalf of AFGE members and federal employees being forced to work without pay, thanks so much for being with us.

This is Democracy Now! When we come back, Jair Bolsonaro has been sworn in as the next president of the world’s fourth largest democracy, Brazil. We’ll speak with the man who lost to him, about what Brazil might look like. Stay with us.