Fedweek

Milwaukee, Jan. 14 - Trevor Stevens works in the bottling room at Lakefront Brewery in Milwaukee, which is waiting on the Alcohol and Tobacco Tax and Trade Bureau to reopen and approve licenses for its "My Turn: Chuck" beer label, so they can sell it out of state.

As the partial government shutdown continues to drag on, agencies are increasingly turning to workarounds to get work accomplished, and federal employee organizations are increasingly turning their attention to public opinion and the courts as attempts to reopen shuttered agencies through the political process continue to stall.

As has happened in past shutdowns, agencies have started calling back to work some employees who have been on furlough. The largest number is at the IRS, which is calling back some 35,000 employees to work on processing tax returns and refunds for the new tax filing season, in addition to the 10,000—of a total of 80,000—who had continued working unpaid. The recalled employees will remain in non-pay status, though.

Other recalls include certain employees to supplement the skeleton staff that had remained on the job in national parks and wildlife preserves that have remained open and which suffered from uncollected trash and other problems; and some Treasury employees to process forms needed for mortgage applications to proceed.

The TSA meanwhile somewhat softened the financial blow for screeners who have been working unpaid, by finding a way to pay $500 bonuses for working during the holiday season plus Saturday pay for those who worked on the first day of the shutdown, December 22. And the unfunded Agriculture Department moved to advance its February round of funding to states under the food stamps program after deciding it still could make those payments if it was done by January 20. On the other hand, some federal court operations that have remained open by using funds from fees reportedly will have to start closing late this week.

Those actions have come as the shutdown has lasted long enough to pass thresholds making a back pay award more likely to some employees under lawsuits filed by the AFGE, NFFE and NTEU unions. Those suits involve a provision of the Fair Labor Standards Act requiring prompt payment of overtime pay that resulted in an award of back pay following the 2013 shutdown. However, that involves only those who have worked overtime pay and the amount awarded due to that shutdown was relatively small per employee—in addition, that money still hasn’t been paid out because the case remains on appeal.

Meanwhile, on Tuesday a federal judge hearing another suit rejected a request that he issue an emergency order to bar unpaid work as unconstitutional; as a fallback argument, the suit claims that only those in jobs involving “imminent” threats to life or property may be kept at work unpaid. NTEU, NATCA and a law firm representing some individual employees making those arguments had asked the judge for a temporary restraining order to stop unpaid work, which would have increased pressure to end the shutdown.

However, the judge—while expressing sympathy for employees working without pay—said that since money has not been appropriated to pay them, such an order would compel agencies to take them off the job. That could result in a chaotic and possibly dangerous situation since they are still working because of their security and safety responsibilities, he said. The case will proceed, though, with another hearing already set for January 31 on a different motion, for a preliminary injunction.

Unions also have been conducting rallies to draw the public’s attention to the loss of services due to the shutdown and the financial impact on the 800,000 employees in non-pay status. Some members of Congress have appeared at those rallies although only those already favoring an immediate end to the shutdown.