By Ken Stone
Reprinted with permission from Times of San Diego, a member of the San Diego Online News Association
Photo: A Border Patrol agent walks along newly installed concertina wire at Border Field State Park. Photo by Chris Stone
January 9, 2019 (San Diego) - Albert Vieira, working as a border officer in San Diego, hasn’t been paid since the partial government shutdown began Dec. 22. Now he’s the named plaintiff in a major lawsuit against the federal government.
Lawyers for him and thousands of others are suing the feds for unpaid minimum wage and overtime — plus matching damages.
Vieira, represented by the National Treasury Employees Union, is an “excepted employee” being forced to work without pay. The collective action is on behalf of 150,000 employees at 33 federal agencies and departments.
Filed Monday in the Washington-based U.S. Court of Federal Claims, the 15-page complaint alleges the administration is violating the Fair Labor Standards Act by requiring federal employees to work without pay.
“It is unconscionable that many employees are having to work – and in some cases overtime – with no pay whatsoever,” NTEU President Tony Reardon said in a statement. “These civil servants took an oath to the Constitution and they do not deserve to be treated this way.”
According to the complaint, Vieira is normally assigned to Oakland. But on Nov. 25, he was deployed by Customs and Border Protection to San Ysidro and Otay Mesa in a duty set to last until Jan. 13.
“The FLSA guarantees, for employees falling within its coverage, the on-time payment of any minimum wage and overtime wages earned,” the suit says. “If those wages are earned, but not paid out, on the employee’s corresponding regularly scheduled payday, the FLSA has been violated.”
Vieira has worked six days a week during the “instant shutdown,” and the suit says he is scheduled to be paid wages earned between Dec. 23, 2018, and Jan. 5, 2019, on either Jan. 14 (via electronic deposit) or by Jan. 17 (by paper check).
Vieira’s attorneys — led by NTEU general counsel Gregory O’Duden — say that the federal government has previously been held to be liable for liquidated damages stemming from its failure to timely pay FLSA wages to FLSA nonexempt employees during a government shutdown.
The lawsuit says Vieira’s overtime pay, as well as matching liquidated damages, may be paid from the Judgment Fund, a permanent appropriation for the payment of judgments and compromises.
“It is not subject to the annual appropriations process and it is not implicated by the current shutdown,” his lawyers said.
Other agencies represented by the NTEU affected by the lapse in appropriations include the IRS, Commodity Futures Trading Commission, Environmental Protection Agency, Federal Communications Commission, Food and Drug Administration, Federal Election Commission, National Park Service, Patent and Trademark Office, Securities and Exchange Commission and the U.S. Department of Agriculture.