New Litigation Claims that the Federal Government is Violating Wage & Hour Law by Forcing Employees to Work Without Pay During the Shutdown

January 16, 2019

With the partial government shutdown reaching record lengths, several federal employees who have been required to work without pay have sought court intervention, alleging that this practice violates the Fair Labor Standards Acts (“FLSA”).  The FLSA, which mandates the payment of minimum wage and overtime, does not include an exception for federal employees.

On January 9, 2019, the National Treasury Employees Union (“NTEU”) filed a collective action lawsuit in the United States Court of Federal Claims, on behalf of Eleazar Avalos and James Davis and all similarly situated individuals, against the United States of America.  Mr. Avalos and Mr. Davis are Customs and Border Protection Officers.  The Department of Homeland Security, Customs and Boarder Protection previously classified both Mr. Avalos and Mr. Davis as non-exempt under the Fair Labor Standards Act, meaning that they are entitled to minimum wage and overtime pay.  According to the complaint (available here), both of the named Plaintiffs, and many other similar workers, have been required been required to work as “essential employees,” without pay, since the partial government shutdown began on December 22, 2018.

Among other things, the named Plaintiffs claim that the Federal Government violated the FLSA, since the Plaintiffs have not been paid, and will not be paid, either a minimum wage or overtime wages for their work performed during this time period.  Additionally, Plaintiffs seek liquidated damages in the amount of 100% of the total wages owed, as well as their reasonable attorneys’ fees incurred in pursuing their claim, both of which are available as damages under the FLSA.

Mr. Avalos and Mr. Davis’s lawsuit is not the first brought against the government for violating the FLSA during this current shutdown. The Avalos/Davis complaint is a revised version of another claim, filed by the NTEU on behalf of Customs and Border Protection officer Albert Vieria, which sought the same relief.[1]  Additionally, on December 31, 2018, the American Federation of Government Employees (”AFGE”) brought a collective action on behalf of Justin Tarovisky and Grayson Sharp, two employees for the Bureau of Prisons, for violations of the FLSA.[2]

This action is not without precedent.  In Martin v. United States,[3] the Court of Federal Claims found that the federal government violated the FLSA when it failed to pay non-exempt employees who were required to work during a previous government shutdown in 2013.  The Martin court also found the Federal Government liable for liquidated damages.

Currently, the AFGE estimates that 420,000 federal employees are working without pay.[4]  Regardless of when the current shutdown ends, if the plaintiffs in these lawsuits prevail, the government could be looking at a hefty bill for wages owed, liquidated damages and potentially attorneys’ fees as well.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.



[3] 130 Fed. Cl. 578 (Fed. Cl. 2017)