National Journal reports that five Bureau of Prisons employees filed on October 24 a class-action lawsuit on behalf of all federal employees forced to work during the shutdown and not paid during it:

The class action lawsuit filed by five Bureau of Prisons employees in the U.S. Court of Federal Claims alleges the government violated the 1938 Fair Labor Standards Act when it delayed full pay for excepted employees until agencies reopened on Oct. 17. The suit asks the government to compensate excepted employees at a rate of $7.25 per hour times the number of hours worked between Oct. 1 and Oct. 5, as well as any applicable overtime. Employees who worked 8-hour days at that rate for five days would be entitled to $290 in back pay under the lawsuit, plus any overtime they are due.

If successful, the plaintiffs would end up receiving double back pay for the trouble the government shutdown caused them. All government employees, excepted and furloughed, should have received their back pay for Oct. 1 through Oct. 5 by now. Employees who remain on the job during a shutdown are guaranteed back pay by law; Congress has to approve back pay for furloughed workers, which it did for the 16-day shutdown. About 1.3 million federal employees were excepted during the shutdown.

The affected pay period ran from Sept. 22 through Oct. 5; the government shut down on Oct. 1, so most federal civilian employees were not paid for Oct. 1 through Oct. 5 in their Oct. 11 paycheck. Military service members and many Defense Department civilians, however, were paid on time during the government shutdown. The Pay Our Military Act, which President Obama signed into law on Sept. 30, ensured that all active-duty and reserve members of the armed forces, as well as any civilians and contractors working in support of those forces, were paid on time regardless of the shutdown’s duration.

The suit alleges 4 violations of the FLSA:

– Despite being fully-paid for the first 9 days of the biweekly pay period, that on an hourly or daily pay basis, the still-working “essential” employees didn’t get at least minimum wage pay for the first 5 days of the shutdown, and that on a weekly basis, most of the “essential” employees didn’t get at least minimum wage pay for the week.
– That those who are not exempt from the FLSA overtime provisions did not get paid overtime accrued during the first 5 days of the shutdown.
– That, because there was no paycheck on (or about, depending on the actual payday) October 11, those normally exempt from the FLSA overtime provisions were not paid on a salaried basis and thus should receive time-and-a-half overtime for all overtime accrued between September 22 and October 5.
– That the lack of a paycheck on or about October 11 was an “unjustified personnel action” under the Back Pay Act, subject to, at a minimum, back pay plus interest, as well as a claim for attorneys’ fees.

I’m not a lawyer, but since back pay has been paid since the lawsuit’s filing in accordance with other provisions of federal law, this lawsuit should be moot because of that. I guess the employees are hoping that because some furloughed federal employees will be keeping their unemployment checks as well as their back pay, a sympathetic judge will let them double-dip as well.