Today, NTEU filed a second lawsuit related to the government shutdown challenging the constitutionality of forcing thousands of federal employees to work without pay.
In the lawsuit, NTEU alleges that that the federal statute allowing employees to be required to work without pay during a lapse in appropriations is unconstitutional. The complaint was filed in the U.S. District Court for the District of Columbia.
At its heart, NTEU is arguing that the Antideficiency Act violates the Appropriations Clause of the U.S. Constitution, which does not allow the government to obligate funds that have not been appropriated by Congress. In having employees work, with a promise to pay them later, the government is incurring liabilities before it has the funds to make good on that IOU.
NTEU’s lawsuit also argues that even if the Antideficiency Act is constitutional, the OMB directive that authorizes federal agencies to except employees from furlough is inconsistent with the Antideficiency Act. That directive, issued in January 2018, in connection with a previous shutdown has illegally authorized agencies to designate broad swaths of employees as excepted employees, which is at odds with the narrower language in the Antideficiency Act about imminent threats to human life and property.
While a case can certainly be made that some federal employees, such as Customs and Border Protection Officers and others, are protecting human life and property, that line of reasoning gets quite shaky when applied to thousands of IRS employees being called back in order to process tax refunds—and to do so without being paid.
NTEU National President Tony Reardon told the media today that “If employees are working, they must be paid—and if there is not money to pay them, then they should not be working.”
As this case proceeds, however, employees called back to work are required to return to their jobs. NTEU will share news about the next steps when it is available.
This constitutional claim follows the Fair Labor Standards Act lawsuit that NTEU has filed in the Court of Federal Claims.