A Rochester Federal Medical Center employee has joined a collective action lawsuit alleging the federal government violated labor laws when it failed to pay employees on time during the partial federal government shutdown.
Local 3447 labor union leader Sandy Parr, a food service foreman at the prison, joined more than a dozen other federal employees from around the country in the collective action lawsuit filed in U.S. Federal Claims Court. A collective action lawsuit requires an employee to affirmatively join the suit.
The defendant in the case is listed as the “United States of America.”
The shutdown, Parr said, not only put local communities at risk but the entire country, with TSA agents and air traffic controllers among the list of unpaid workers.
“When you look at the prisons, it made it extremely unsafe for us,” Parr said. “We house the worst of the worst criminals in the United States, and I support my federal law enforcement officers on the border. I don’t know if they need a wall, but to endanger our country (by shutting down parts of government) to get more security just doesn’t make sense to me.”
The complaint was initially filed on Jan. 2 by Justin Tarovisky, a senior officer specialist at a prison in West Virginia, and Grayson Sharp, a senior officer specialist with Department of Justice/Board of Probation in Pennsylvania.
Parr and about a dozen others who work in various departments of the federal government joined the lawsuit about two weeks later, according to court records.
An attorney representing Parr and the other plaintiffs said Thursday evening that “tens of thousands” of employees have signed on to join the suit. Official court documents at this time only list 17 plaintiffs, including Parr, but many more have signed forms to join the suit.
50 at FMC sign on
Parr said about 25 percent, or 50, of the eligible employees at the Rochester FMC have signed on to the lawsuit, with more signing on every day.
The lawsuit alleges that during the partial federal government shutdown “excepted employees” — those who must continue to work despite unfunded annual appropriations — did not receive payment for overtime work and/or minimum wage performed after the start of the shutdown on their regularly scheduled pay period.
“We would never require somebody to work for free,” Parr said. “If another agency did that outside of the federal government, the federal government themselves would step in and say ‘that’s unconstitutional, you can’t do it.’ But they do it to their own employees.”
The lawsuit alleges that the Fair Labor Standards Act was violated when they were not paid on their scheduled pay days the wages they were owed. The failure to pay employees was “willful, and in conscious or reckless disregard” of the requirements of the Fair Labor Standards Act, according to the lawsuit.
FLSA requires employers, including the federal government to pay employees on time for the time they work. During the partial government shutdown, there were two full pay periods where the government did not pay the affected federal employees anything, said Robert DePriest, an attorney on the case.
Back pay, plus more
The government passed legislation on Jan. 16 authorizing back pay for the employees who were affected by the shutdown.
Assuming the government properly pays employees back pay for the time they worked during the shutdown, the lawsuit is also seeking “liquidated damages” equal to the value of the federal minimum wage of $7.25 for the regular hours employees worked and did not receive pay during the shutdown, according to DePriest.
If an employee also worked overtime during the shutdown, the lawsuit asks a judge to award “liquidated damages,” which would result in an employee being paid twice for the overtime they worked — once in back wages and once in damages.
A similar class action lawsuit was brought in 2013 by the same attorney, Heidi Rhodes Burakiewicz, of the Washington D.C. law firm Kalijarvi, Chuzi, Newman & Fitch. The courts ultimately ruled in 2017 that the government was liable for damages for failing to pay federal employees working during a shutdown.
A response has not yet been filed by the government. On Jan. 16, the federal court clerk’s office decided to stay the case until further notice.
“Immediately upon restoration of appropriations to the Department of Justice, the parities shall CONFER and, as soon as practicable thereafter, shall FILE a joint status report,” according to court documents.