Under the Fair Labor Standards Act ("FLSA"), employees must be paid minimum wage and compensated for overtime work on their regularly scheduled payday after performing the work. The first biweekly pay period affected by the government shutdown was September 22nd - October 5th. While essential employees, who worked throughout this period, received a partial payment on their regularly scheduled payday, they were not paid for any time worked from October 1st through october 5th. Even though the government has now retroactively paid these essential employees, plaintiffs claim that its failure to pay them at all for work during these five days on their regularly scheduled payday violates the FLSA.
The FLSA also provides that employees are entitled to liquidated damages when an employer violates the FLSA. Plaintiffs claim, on behalf of themselves and other similarly situated essential employees, that the retroactive payments compensate only for the time worked October 1st through October 5th, but not for the liquidated damages to which essential employees are entitled because they were not paid minimum wage or overtime on their regularly scheduled payday. We believe that, in this case, liquidated damages will equal the minimum wages the government was required to pay essential employees but did not on their regularly scheduled payday and double the amount of the overtime that was unpaid on that date.
This is not a windfall for these employees, whom the United States determined to be essential to the government’s operations. Liquidated damages are intended to compensate employees for the losses they may have suffered as a result of not receiving the proper wages when due. We already have heard of numerous employees having to deplete savings and beseech creditors for extra time because they didn’t know when they would be paid. They should receive liquidated damages to compensate them for their injuries suffered in their service to their country.
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