The Foreign Service Journal, May 2019

AFSA NEWS THE FOREIGN SERVICE JOURNAL | MAY 2019 61 The Shutdown: Why Didn’t AFSA Sue the Federal Government? NOTES FROM LABOR MANAGEMENT During the recent U.S. gov- ernment shutdown, a number of our members asked whether AFSA was planning on filing a class action lawsuit against the government for requiring employees to work without pay. They had read about sev- eral class action lawsuits that chal- lenged the govern- ment on numerous grounds, alleging violations of the Fair Labor Stan- dards Act (which requires over- time for covered employees), violations of the Constitution’s Fifth Amend- ment (which bars arbitrary government intrusion) and 13th Amendment (which bars involuntary servitude), and violations of the Anti- Deficiency Act (which makes it illegal to create compensa- tion obligations that surpass the appropriated budget). The case that alleged viola- tions of the 13th Amendment and the Anti-Deficiency Act was decided in favor of the government by the U.S. Dis- trict Court. The judge believed that it would be “profoundly irresponsible” to rule in a way that would stop federal employees from working dur- ing the shutdown because of safety concerns. The judge said this would be chaotic at best and, at worst, it would be “catastrophic” and “put people’s lives at risk.” To date, the only lawsuits that have been successful are those that alleged violations of the Fair Labor Standards Act (FLSA). The FLSA requires the government to pay overtime in the pay period in which it was earned with a delay no longer than the next pay period. There- fore, if a covered employee worked beyond eight hours in a day during the furlough and was not paid by the next pay period, this would constitute a violation of the FLSA. This decision, however, does not affect Foreign Service members. The vast majority of Foreign Service members are FLSA-exempt (i.e., not covered by the law), and tenured Foreign Service officers are prohibited from receiving overtime pay by Title 5 of the U.S. Code in any case. In addition, while unten- ured officers and specialists may receive overtime pay under Title 5 of the U.S. Code, many employees are exempt from FLSA under the profes- sional, administrative and executive exemptions. Finally, even if an untenured offi- cer or a specialist were not exempt from FLSA, it does not apply overseas. Employees who were exempted from the furlough are required to receive back pay for their work, but this must be done through the passage of a bill by Congress for each shutdown. The 2019 Government Employee Fair Treatment Act, which Congress passed during the shutdown, and which the president signed, guaran- tees that furloughed employ- ees will receive back pay for their work and ensures previously scheduled leave is unaffected by the shut- down. Significantly, the new law also guarantees that furloughed employees will receive back pay in all future shutdowns. n —Ben Phillips, law clerk AFSAGoverning Board Meeting, March 20, 2019 Digital Archive Demo for The Foreign Service Journal : Publications Coordinator Dmitry Filipoff demonstrated for Governing Board members how to use the newly launched digital, searchable FSJ archive (www.afsa.org/fsj-archive ). He explained how easy it now is to search by year, by topic and by specific author, and illustrated with several good search result examples. The digital archive makes all 100 years of Journal content accessible to practitioners, aca- demics, journalists and others worldwide. n To date, the only lawsuits that have been successful are those that alleged violations of the Fair Labor Standards Act. Ben Phillips.