As the average American braces for the shutdown of the U.S. government, the largest federal employees union plans to take care of its own by suing the government for members’ pay if the government is forced to close its doors.
John Gage, national president of the American Federation of Government Employees (AFGE), said his union would consider filing a lawsuit under the 13th Amendment of the Constitution because some workers would be required to work without pay to keep vital operations running.
“We are look at that actively,” said Gage, whose union represents 600,000 federal and D.C. government workers.
The 13th Amendment, which became law in 1865, ended slavery and indentured servitude in the United States. AFGE attorneys saw the law would apply in the event of a shutdown since federal workers who are deemed “essential” to federal operations could be forced to work without pay on the threat of being terminated, The Hill newspaper reported on Tuesday.
Up to 800,000 federal workers could be furloughed in the event of a shutdown.
The AFGE’s general counsel, David Borer, asserted that the federal government can’t require employees to work without pay “under threat of physical or legal compulsion.”
“If you’re deemed ‘essential,’ you have to come to work,” he said. “If you don’t, you would be fired. That’s your legal compulsion right there.”
The AFGE also could point to the Anti-Deficiency Act, which says the government can’t accept workers’ services for free and can’t promise to pay them in the future unless the funds have already been appropriated by Congress.
Asked what the lawsuit would accomplish, Gage told CNN: “First of all, the rules on these shutdowns have never been established, and requiring employees to work without guaranteeing pay, we believe, is of dubious legality. The lawsuit is a technical one, to flesh out the application of essential employees in a non-pay situation.”
The AFGE filed a similar lawsuit during the 1996 government shutdown, but the suit did not progress because employees eventually were awarded back pay.
Last week, the AFGE filed a suit against Office of Management and Budget Director Jack Lew for not answering its Freedom of Information Act request for the contingency plans of federal agencies if the government does shut down.
The union said in a statement: “The American Federation of Government Employees filed a lawsuit in federal court on March 30 seeking details on agencies’ shutdown plans.
“AFGE filed a Freedom of Information Act request with the Office of Management and Budget on March 2 seeking copies of agencies’ contingency plans for continuing operations during a government shutdown. AFGE filed the lawsuit after the OMB failed to respond to the FOIA request.
“AFGE and other unions have been provided with little information on how a shutdown would impact agency programs and services and how agencies would determine which employees are essential.”
Two other federal employee unions also have complained that the Obama administration has not informed them what would happen to their workers in the event of a shutdown — the National Federation of Federal Employees and the National Treasury Employees Union.
All three unions have expressed opposition to plans from House Republicans to slash $61 billion from federal spending this year.
Meanwhile, a growing list of congressmen say they shouldn’t be paid if the government shuts down, The Hill reports.
"If we do shut down, members of Congress shouldn't get any pay during the shutdown," Sen. Olympia Snowe, R-Maine, told Maine radio station WLOB on Wednesday.
On Tuesday, 21 Senate Democrats sent a letter to House Speaker John Boehner asking for a meeting to consider a bill sponsored by Sen. Barbara Boxer, D-Calif., that would take away the paychecks of congressmen and the president during a shutdown.
"Our bill is simple,” the letter reads. “If we cannot do our work and keep the government functioning, we should not receive a paycheck.”
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