In a post at Outside the Beltway James Joyner points out something of which I was unaware or at least have no recollection of knowing—the Trump Administration’s failure to pay exempted federal employees is a violation of the Fair Labor Standards Act of 1938:
The partial government shutdown caused by President Trump’s bizarre insistence on more than $5 billion being budgeted for a border wall is now in its 22nd day, breaking the record set by the 1996 shutdown. Additionally, those in affected agencies missed their scheduled payday yesterday, creating a violation of Federal law for exempt workers ordered to work.
Government Executive‘s Eric Katz explains (“Saturday, the Shutdown Becomes the Longest Ever. And Illegal“):
The missed pay brought the shutdown further into new territory: it is now illegal. That is according to a precedent set by a federal court after the 16-day 2013 shutdown, in reference to many of the “excepted” or “exempted” employees who are forced to work during the lapse with only the promise of retroactive pay once their agencies reopen. A group of those workers sued the government after that lapse; 25,000 workers ultimately signed onto that lawsuit.
In 2014, Patricia Campbell-Brown, a judge in the U.S. Court of Federal Claims, ruled the government violated the 1938 Fair Labor Standards Act when employees worked without receiving immediate pay. While the government sought to argue the delay in payment was not “egregious,” the judge said a violation occurred under the FLSA as soon as the checks were not delivered on time. She also rejected the government’s argument that any financial hardship occurred only because of federal workers’ “poor financial management decisions.”
My preferred solution to this is for each side to allow the other to save face but, as I noted earlier, the main purpose of the shutdown is to embarrass the other side so that’s unlikely to happen.
By my calculation these exempt employees have now missed exactly one paycheck and that by one day. There’s an obvious resolution to this technical violation of the court’s decision: pay the exempt employees.
However, I do have a question. With all due respect to Judge Campbell-Smith (the snippet quoted above is in error—the deciding judge was Patricia Campbell-Smith), does the Congress actually have the authority to micromanage the executive at this level? Do the courts? I’m skeptical. I would think that a reasonableness standard would apply. Perhaps someone can enlighten me on this.