Union ready to sue for pay if shutdown occurs

The head of the largest federal employees union said Tuesday that his group would likely file a lawsuit against the federal government for workers’ pay if a shutdown occurs.

Speaking at the National Press Club, John Gage, national president of the American Federation of Government Employees (AFGE), said his union would consider filing a claim under the Constitution’s 13th Amendment in the event of a shutdown since some workers would have to work without pay to keep vital operations up and running. 

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“We are looking at that actively,” Gage said of a lawsuit.

The 13th Amendment became law in 1865, ending the practice of slavery and indentured servitude in the United States. AFGE lawyers say the law applies in the instance of a government shutdown since federal workers who are deemed “essential” to government operations could be forced to come to work without pay on the threat being fired.

The federal government will run out of funds this Friday unless Democrats and Republicans can resolve their differences over spending cuts and agree upon a new spending measure for the rest of the fiscal year.

David Borer, AFGE’s general counsel, said the federal government can’t force employees to come work without pay “under threat of physical or legal compulsion.”

“If you’re deemed ‘essential,’ you have to come into work. If you don’t, you would be fired. That’s your legal compulsion right there,” Borer said. “That was supposed to end in 1865 but here we are.”

Compounding the dilemma for the federal government is the Anti-Deficiency Act. That law says the government can’t accept workers’ services for free and also cannot promise to pay them in the future if those funds have not already been appropriated by Congress. 

Borer said AFGE filed a similar lawsuit during the 1996 federal government shutdown. That lawsuit was rendered moot because federal employees were eventually awarded back-pay for their work.

“We are going to say that they can’t force people to come to work without pay. Our people want to work but they want to be paid,” Borer said.

The planned legal action could follow another lawsuit already filed by the 600,000 member-strong AFGE union stemming from shutdown concerns.

Last week, the union filed a lawsuit naming Office of Management and Budget (OMB) Director Jack Lew as a defendant for not answering their Freedom of Information Act request for federal agencies’ contingency plans in the event of a shutdown.

Gage said officials at OMB as well as the Office of Personnel Management have told the union that they have not released their shutdown plans because they believe government operations will still be funded past Friday.

“No reason was given other than they don’t think there will be a shutdown,” Gage said.

Gage’s complaint echoes criticism by leaders of other federal employee unions, such as the National Federation of Federal Employees (NFFE) and the National Treasury Employees Union (NTEU), that the Obama administration has left them in the dark about what would happen to their members in the government closes its doors.

All three unions oppose the plan from House Republicans to cut $61 billion from federal spending this year. AFGE released a radio ad last week opposing the cuts, while NTEU and NFFE jointly called on their members to call into lawmakers Tuesday to advocate against a shutdown.

Gage said if the shutdown does happen, federal workers will end up being blamed instead of lawmakers for failing to reach an agreement. Americans will notice that Social Security offices are closed and other vital government services are out of commission.

“Services fall, we get criticized,” Gage said. The union president said AFGE would call upon its members to line up at their closed federal offices for work during a shutdown in order to show the public that they still want to work.

Gage also went after budget cuts proposed by the GOP-controlled House, saying they are for political reasons rather than reducing the debt.

“When you see where these cuts are, you see it’s not about the deficit,” Gage said.

Gage said he hadn’t a chance to review the House Republicans’ latest plan, which emerged Monday, for another continuing resolution that would keep the government funded for one more week. But the union president said if the proposal was more “death by a thousand cuts” by incrementally reducing government programs, it didn’t sound “responsible” to him.

“I think it’s time for a serious discussion, and if it takes a government shutdown to prompt a serious discussion, then maybe that’s what has to happen,” Gage said.