This page provides updates about significant developments in the case.
March 2, 2015
The Government shall begin sending court approved notice to employees covered by the lawsuit on March 9, 2015. If you do not receive a notice, but believe that you should, please contact us at email@example.com.
February 24, 2015
During the past two and a half months, the Government has been identifying all of the employees at Government agencies who were classified as “excepted” (or “essential”) during the October 2013 Government shutdown and as “non-exempt” under the Fair Labor Standards Act (“FLSA”), and who were not paid on their regularly scheduled paydays during the shutdown. Those are the people to whom notice of their right to join the lawsuit will be sent.
Many agencies had records that made this a relatively simple task. For other agencies this was a major undertaking. However, the process is nearly complete, and the Government currently believes that it will be able to begin sending the approved notices on March 9.
Most affected employees will receive the notice approved by the Court as an attachment to an email to their Government email account. The email will be entitled “Notice of Your Rights in a Collective Action Lawsuit Arising Out of the Government Shutdown.” The emails may be staggered over a one or two week period.
Employees of the Department of Defense will receive a short form of the notice, but there will be links to the form received by other employees. The process for joining the case will be the same regardless of an employee’s agency.
Former employees, and some current employees – primarily air traffic controllers – will receive a letter through the United States mail. The information in the mailed notice will be the same as in the emailed notice.
While the process of identifying recipients of the notice has been ongoing, we also have been engaged in what the lawyers call the “discovery” process. During this process the Government is providing us with documents and other information that we have requested relevant to our claims. That process is scheduled to end on May 25, 2015. After that, the parties will file motions which may result in decisions from Judge Campbell-Smith resolving the remaining issues in the case.
We will post another update when we have a certain date for the sending of notices.
December 5, 2014
On Thursday, December 4, WTOP radio in Washington, DC interviewed lead lawyer Heidi Burakiewicz about the case. Heidi discusses many topics, including the reasons for the case, how to join so as to participate in any monetary awards, the current status of the case and the notice that will be sent to federal employees early next year. You can listen to the interview by clicking on the link below.
Currently the government is trying to identify all of the employees whom it required to work during the 2013 shutdown, who are classified as non-exempt under the FLSA, and who were not paid on their regularly scheduled paydays. It filed a Corrected Status Report with the Court on November 20, 2014 that identifies three categories of agencies – a total of 54 agencies – that it contends have no employees who can qualify for awards: 19 agencies for which no FLSA non-exempt employees worked during the shutdown; 17 agencies that shut down completely during the shutdown; and 18 agencies for which any employees who worked during the shutdown were paid on their regularly scheduled paydays. The government acknowledges that 34 agencies had FLSA non-exempt employees who worked during the shutdown and were not paid on their regularly scheduled paydays.
It is important for as many of you as possible to examine this list promptly and let us know whether you believe that you qualify for an award even though you worked for one of the 54 agencies that the government contends has no qualifying employees. Just because the government lists an agency as not having any employees who may qualify to participate in the lawsuit does not make it so.
For example, the government lists the Department of Defense as an agency for which any employees who worked during the shutdown were paid on their regularly scheduled payday. While provision was made for all military employees to be paid on their regularly scheduled paydays, over 50 civilian employees of the DOD have already joined the lawsuit, contending that they were not paid on their regularly scheduled paydays for all work performed during the shutdown. Therefore we promptly filed an opposition to the government’s inclusion of the DOD as an agency with no employees eligible to participate in the case.
There may be other agencies like the DOD that have been wrongly included on the government’s lists of agencies without eligible employees. We will not be able to identify any other errors without your help. Please look at the Corrected Status Report as soon as possible and let us know if you think that the government has wrongly included your agency.
November 11, 2014
As explained in the September 26, 2014 update to the website, the lawyers for the Plaintiffs and the federal Government had agreed, and the judge had ordered, that notice would be sent to affected Government workers of their right to join the lawsuit, but that the parties still were negotiating over the terms of the notice and of how notice would be provided to Government employees. The parties reached agreement by October 10, 2014, and on October 16, the Judge entered an Order adopting the parties’ proposed forms of Notice, and the plan for giving Notice, with a few minor modifications.
The Order contains numerous contingencies recognizing that not all Government or former Government employees may receive the identical notice in the identical manner. In general, however, Government employees who were required to work during the October 2013 Government shutdown and are classified as “non-exempt” under the FLSA (Fair Labor Standards Act) will receive an email to their Government email address containing the agreed Notice informing them of their right to join the lawsuit. Persons who were required to work during the shutdown and are classified as “non-exempt” under the FLSA, but who left Government employment after October 2013, will receive either an email to a personal email address or a letter through the United States mail to their home address with the Notice.
The Order establishes a process for determining the date, called the “Notice Date,” by which the Notice will be sent to these current and former employees. We don’t yet know when the Notice Date will be, but believe that it will occur in early 2015. Recipients will have 105 days, 3 ½ months, after the Notice Date to join the lawsuit. That deadline probably will be in mid-Spring.
The judge has already ruled that the Government violated the FLSA when it failed to pay non-exempt employees who were required to work during the shutdown in a timely manner. Aside from the Government’s right to appeal, the only remaining issue is the amount, if any, of liquidated damages that the Government owes to these employees.
September 26, 2014
On Friday, September 19, the parties filed a joint report with the Court. The report informs the Court that the parties agree to conditional certification of the case. Conditional certification is required before the Court may direct that notice be given to members of the collective action of their right to join the case. We therefore believe that this is a significant development in the case.
The report also informs the Court that the parties still are negotiating over the language of the notice and the means of giving notice. The parties ask for an extension until Friday, October 10, to reach agreement on as many issues as possible concerning notice and for permission to submit papers arguing for their positions on the issues (if any) that remain in dispute. Finally, the report presents agreements that the parties have reached about discovery concerning the next issue to be addressed in the case: will the Government be required to pay liquidated damages for not paying Government employees minimum and overtime wages on their regularly scheduled paydays during the October 2013 government shutdown?
We also are happy to inform you that, by Order dated September 23, the Court adopted the parties’ recommendations.
We are hopeful that the continuing negotiations will produce complete, or almost complete, agreement by October 10 on the language of all forms and on the means of presenting notice.
August 3, 2014
On Thursday, July 31, Chief Judge Patricia Campbell-Smith of the United States Court of Federal Claims issued two orders: a decision partially denying the Government’s motion to dismiss the plaintiffs’ claims that the Government violated the Fair Labor Standards Act (“FLSA”), and a scheduling order. You can read the decisions by clicking the links in the previous sentence.
As described in prior entries, the Government filed on March 14, 2014 a motion to dismiss the claims that it violated the FLSA when it did not pay “essential employees” on their regularly scheduled payday for work performed on October 1-5 during the partial government shutdown last year. Judge Campbell-Smith’s decision contains four rulings.
In combination, these four rulings mean that, unless the Government successfully appeals, the Government violated the FLSA as to most of the members of the class. The only “essential” employees who worked on October 1-5, 2013 to whom the Government is not liable are (a) persons classified as “exempt” under the FLSA, such as teachers, registered nurses and high-level managers, and (b) persons classified as “non-exempt” who (i) did not work any overtime during the week of September 29-October 5, 2013 and (ii) received sufficient pay for the week of September 29-October 5, 2013 that they do not have a “minimum wage” claim. That is explained more below. The judge refrained from any decision on damages.
In the most important part of the decision, Judge Campbell-Smith rejected the government’s arguments that it had not violated the FLSA. Instead, the Court ruled that (a) the FLSA protected non-exempt government workers who had to work during the partial shutdown against late payments of minimum and overtime wages and (b) the FLSA required that payments be made on employee’s regularly scheduled paydays. Because employees were not paid on their regularly scheduled paydays for work performed October 1-5, 2013, this ruling means that the Government violated the FLSA as to each “essential employee” who is non-exempt under the FLSA. (Exempt employees are addressed in the third ruling, discussed below.)
In reaching this ruling, the judge showed sympathy for the plight of people who had to work while not knowing when they would be paid. She wrote:
Defendant also suggested at oral argument that the financial damage some plaintiffs might have suffered—in the manner of being unable to pay bills or medical expenses, and incurring fees—may have occurred not because the government failed to pay the employees on time as required under the law, but because plaintiffs may have made “poor financial management decisions.” While not relevant to the court’s inquiry into whether plaintiffs have stated a claim for relief, the court notes that at least some government employees, who may be plaintiffs herein, were working at the GS-04 or GS-05 levels, and had annual salaries starting around $28,000 in 2013. Such salaries leave families a narrow margin, particularly when—as plaintiffs in this action have described—child care expenses continue and unexpected health-related expenses arise.
Second, the judge rejected the Government’s argument that, in evaluating whether employees were paid minimum wage, she should look to how much they were paid on their regular payday for the entire pay period from September 22 through October 5. If she had accepted the Government’s position, she would have concluded that the Government paid virtually every “essential employee” the minimum wage. The minimum wage is $7.25 per hour. Most “essential employees” worked at least 80 hours during the pay period. Thus, the government argued that any “essential employee” who was paid on his/her regular payday more than $580 for the two-week period was paid minimum wage, even if the employee wasn’t paid a dime for part of the period (October 1-5). The judge instead decided that whether an “essential employee” was paid minimum wage on his/her regular payday would be judged on the one-week period from September 29 through October 5. Employees were paid on their regular payday only for any work done on September 29 (Sunday) and September 30 (Monday). If an employee was paid on his/her regularly scheduled payday less than $290 ($7.25 x 40 hours) for work on those two days, the employee has a viable minimum wage claim. For example, an employee whose salary is $50,000 per year is paid about $24 per hour. If the employee worked eight hours on Monday, September 30, s/he was paid about $192, which is $98 less than minimum wage if the employee worked 32 hours more that week without being paid. Conversely, an employee who was paid $290 or more on his/her regularly scheduled payday does not have a minimum wage claim, but still will have an overtime claim if the employee worked any overtime between September 29 and October 5 and was not paid for it on the regularly scheduled payday.
Incidentally, we argued that employees were entitled to minimum wages of $7.25 per hour for all work performed between October 1 and October 5, regardless how much they may have been paid for work on September 29 and 30. The judge rejected that argument as well, but it is preserved if the case ever goes to the appeal court.
Third, in the only part of the decision that we lost, Judge Campbell-Smith rejected our argument that in this case employees who are classified as exempt under the FLSA (such as teachers, registered nurses and high-level managers) should also be permitted to recover because the Government did not treat them as exempt when it failed to pay them on their regularly scheduled paydays. Thus, she dismissed the claims of “essential employees’ who are classified as exempt.
Finally, the judge did not rule on whether employees with minimum wage or overtime claims are entitled to “liquidated damages,” which is equal to the amount of minimum wages and overtime wages that were not paid on the regularly scheduled payday. She said that she was offering “defendant an opportunity to meet its burden [of proving that it is not liable for liquidated damages], before the court makes a determination regarding the applicability of liquidated damages.”
On balance, we believe that the decision is favorable to the plaintiffs, except for employees classified as exempt under the FLSA.
The judge’s scheduling order gives the Government until September 2, 2014 to oppose plaintiffs’ motion to conditionally certify this case as a collective action. Our entry dated January 28, 2014 describes this motion. It asks the Court to approve the sending of notice about the lawsuit to all 1.3 million “essential employees.” The notice will describe their rights and how they can become part of the lawsuit. The judge had placed briefing of the motion on hold until there was a decision on the Government’s motion to dismiss.
June 2, 2014
Chief Judge Patricia Campbell-Smith has not yet ruled on the Government's motion to dismiss. She did, however, quickly grant our motion for leave to file a Second Amended Complaint, which adds over 900 additional persons to the case. The Government opposed our motion on two grounds, both of which she rejected. Click here to read her decision.
We expect that the Judge’s next decision will be on the Government’s motion to dismiss, and we will post it on this site promptly after we receive it.
May 12, 2014
On Friday, May 9, Chief Judge Patricia Campbell-Smith heard oral arguments for about two and a half hours on the Government’s motion to dismiss plaintiffs’ claims under the Fair Labor Standards Act (FLSA). Three themes pervaded the argument.
First, the Government’s lawyer argued that the Government is a unique employer and that the events that occurred in October were unique. Plaintiffs’ lawyer Heidi Burakiewicz responded that the law prohibiting the Government from not paying its employees on their regularly scheduled paydays is well-established and applicable to the federal Government just as it is to private employers and state and local governments.
Second, the Government’s lawyer continually argued as if the Government did not include the Congress by contending that the Government should not be liable because the agencies were prohibited from paying their employees until the budget impasse ended. Heidi pointed out that we were suing the United States of America and that the United States could be liable for actions of Congress as well as actions of the agencies.
Finally, the Government contended that the short delay in payment was not bad by the standards of other cases and suggested that employees generally should not have been badly harmed by the delay if they properly managed their resources. Heidi gave examples of employees who were badly harmed but contended, as a legal matter, that the FLSA does not distinguish among degrees of egregiousness: either an employer violates the FLSA or it does not.
We don’t know how long it will take the Judge to issue her decision on the Government’s motion. We will post her decision on this site when it is available.
You also may review the Government’s reply brief on its motion to dismiss, which it filed Friday, May 5.
April 16, 2014
As described in our March 12 update, the Government on March 11 filed a motion to transfer our case for supposed lack of jurisdiction and a motion to dismiss all of our claims on a variety of grounds. We filed our Opposition to the Government’s motion on Friday, April 11. We did not have to respond to the Government’s motion to transfer because, prior to April 11, a higher court disagreed with the Government’s theory. Hence, we unquestionably filed the case in the proper jurisdiction, and the Government withdrew its motion to dismiss.
The Opposition sets out why we believe that the Government’s motion to dismiss your claims for minimum and overtime wages under the Fair Labor Standards Act (FLSA) should be denied. We believe that we have refuted every one of the Government’s arguments, and indeed, shown why you should win your FLSA claims.
In only one respect do we think the Government’s motion was correct. Upon further research, we agree that you do not have valid claims under the Back Pay Act, and have agreed to dismiss those claims. That concession, however, should have few if any consequences. The Back Pay Act claim was only for interest, and if the Court agrees with all of our FLSA arguments, you wouldn’t be entitled to interest anyway. (You are entitled either to liquidated damages under the FLSA or interest under the Back Pay Act, but not to both.)
The Government must file its reply to our Opposition by May 2. The hearing on the Government's motion to dismiss is set for May 9 at 10:00am. The hearing will be open to the public, and we encourage you to attend if you are free at that time and in the Washington, DC area.
March 12, 2014
Our prior posting informed you that the Government's response to our Amended Complaint was due February 10, that its response to our motion for conditional certification of the collective action was due February 14, and that the Court of Federal Claims had set oral argument on our motion for conditional certification for Monday, March 17, 2014. That schedule has changed.
In early February, the Government asked the Court for more time to respond to the amended Complaint and three more months to respond to the motion for conditional certification. We opposed the motions, and the Court set the following new schedule.
The Government had to file its response to the Amended Complaint by yesterday, March 11. It has filed a motion asking the Court to dismiss the lawsuit. We have until April 11 to respond, and the Government must file its reply by May 2. The hearing on the Government's motion to dismiss is set for May 9 at 10:00am.
The hearing will be open to the public. We will post our opposition to the Government's motion to dismiss and the Government's reply once they are available.
If the Court denies the Government's motion to dismiss, it will have 30 days to oppose our motion for conditional certification, and we will have 14 additional days to reply.
January 29, 2014
The case had been "stayed," meaning nothing could be filed, from October 31, 2013 until late January 2014.
But on January 22, 2014, the parties submitted a Joint Status Report that concluded, "The parties are not aware at this time of any other reason to continue the suspension of the case." In response to that report, the Court issued an Order the next day lifting the stay on the case.
With the stay removed, the plaintiffs filed an Amended Complaint on January 26, the principal purpose of which was to add 1,017 new "essential employees" to the action. The FLSA does not permit class action lawsuits. Only by joining the suit can "essential employees" receive money from a favorable judgment or settlement. These 1,017 persons are now part of the lawsuit. If you do not join, you will not receive any money from the lawsuit.
We actually have received signed "Consent to Join" forms from over 500 additional people, and intend to file a Second Amended Complaint shortly adding them.
Most recently, on January 28, we filed a Motion for Conditional Certification and supporting Brief. This motion asks the Court to approve the sending of notice about the lawsuit to all 1.3 million "essential employees." The notice will describe their rights and how they can become part of the lawsuit. This is a normal step in litigating claims under the FLSA, and we believe that plaintiffs easily meet the standard for the Court to approve the sending of notice.
The Government’s response to our Amended Complaint is due February 10, while its response to our motion for conditional certification of the collective action is due February 14. In addition, the Court of Federal Claims has set oral argument on our motion for conditional certification for Monday, March 17, 2014 (St. Patrick’s Day) at 10:00 a.m. at the courthouse. The hearing is open to plaintiffs and any other members of the public.
October 31, 2013
Judge Susan Braden, to whom this case originally was assigned, transferred it to new Chief Judge Patricia E. Campbell-Smith.
October 24, 2013
Plaintiffs filed the Complaint initiating the case.
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