Forcing federal employees to work during shutdown is a 'clear violation': professor

The Trump administration ordered thousands of federal employees back to work without pay on Tuesday, raising questions over whether it is legal in America to make people work for free.

“The Fair Labor Standards Act requires workers to be paid at least the minimum wage for hours they worked in a timely fashion,” said Minna Kotkin, director of the Employment Law Clinic at Brooklyn Law School. “There is a legitimate claim that this... is violating the Fair Labor Standards Act.”

Since the partial government shutdown began on Dec. 22, roughly 800,000 workers have not been paid. One-fifth of the workers make less than $50,000, and they’ve missed an average of $5,000 in pay so far, according to a New York Times analysis.

RELATED: Furloughed workers protest amid government shutdown

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Furloughed workers protest amid government shutdown
Union workers demonstrate in front of the White House against the government shutdown on January 10, 2019, in Washington, DC. - US President Donald Trump headed Thursday to the US-Mexico border to push his demand for a wall, a day after he walked out of negotiations with Democrats in a political crisis paralyzing the government. (Photo by NICHOLAS KAMM / AFP) (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
Union members and Internal Revenue Service workers rally outside an IRS Service Center to call for an end to the partial government shutdown, Thursday, Jan. 10, 2019, in Covington, Ky. (AP Photo/John Minchillo)
IRS worker Christine Helquist joins a federal workers protest rally outside the Federal Building, Thursday, Jan., 10, 2019, in Ogden, Utah. Payday will come Friday without any checks for about 800,000 federal employees affected by the government shutdown, forcing workers to scale back spending, cancel trips, apply for unemployment benefits and take out loans to stay afloat. (AP Photo/Rick Bowmer)
IRS worker Angela Gran, center, and others participate in a federal workers protest rally outside the Federal Building, Thursday, Jan., 10, 2019, in Ogden, Utah. Payday will come Friday without any checks for about 800,000 federal employees affected by the government shutdown, forcing workers to scale back spending, cancel trips, apply for unemployment benefits and take out loans to stay afloat. (AP Photo/Rick Bowmer)
Cheryl Monroe, right, a Food and Drug Administration employee, and Bertrice Sanders, a Social Security Administration employee, rally to call for an end to the partial government shutdown in Detroit, Thursday, Jan. 10, 2019. (AP Photo/Paul Sancya)
Government workers rally against the partial government shutdown at Federal Plaza, Thursday, Jan. 10, 2019, in Chicago. The partial government shutdown continues to drag on with hundreds of thousands of federal workers off the job or working without pay as the border wall fight persists. (AP Photo/Kiichiro Sato)
People gather during a federal workers protest rally at the Federal Building Thursday, Jan., 10, 2019, in Ogden, Utah. (AP Photo/Rick Bowmer)
People gather during a federal workers protest rally at the Federal Building Thursday, Jan., 10, 2019, in Ogden, Utah. (AP Photo/Rick Bowmer)
Furloughed TSA worker Marae Persson shows participates in a federal workers protest rally at the Federal Building Thursday, Jan., 10, 2019, in Ogden, Utah. (AP Photo/Rick Bowmer)
Furloughed National Park Service ranger Kathryn Gilson, center, listens as fellow furloughed ranger Sean Ghazala, left, speaks to the media, Thursday, Jan. 10, 2019, during a press conference and rally at Staten Island's La Colmena Center in New York. Ghazala is based at Manhattan's African Burial Ground, and Gilson works at Gateway National Recreation Area, a national park encompassing wetlands surrounding New York city and parts of New Jersey's coastline. Gilson says she is home "bouncing off the walls" and worrying about paying her bills and student loan. Staten Island is a largely Republican borough of New York city, but Democrat Max Rose recently defeated his Republican opponent in the 2018 congressional elections. (AP Photo/Kathy Willens)
People rally to call for an end to the partial government shutdown in Detroit, Thursday, Jan. 10, 2019. (AP Photo/Paul Sancya)
Union members and other federal employees protest the government shutdown on Capitol Hill in Washington, Thursday, Jan. 10, 2019. (AP Photo/Andrew Harnik)
Union members protest the government shutdown on Capitol Hill in Washington, Thursday, Jan. 10, 2019. (AP Photo/Andrew Harnik)
Union members and other federal employees stop in front of the White House in Washington during a rally to call for an end to the partial government shutdown, Thursday, Jan. 10, 2019. . (AP Photo/Pablo Martinez Monsivais)
A demonstrator holds a 'Stop The Shutdown' sign during a rally with union members and federal employees to end the partial government shutdown outside the White House in Washington, D.C., U.S., on Thursday, Jan. 10, 2019. The partial government shutdown entered its 20th day today as its impact is more widely felt with about 800,000 federal workers who will miss their paychecks on Friday. Photographer: Andrew Harrer/Bloomberg via Getty Images
Union workers demonstrate in front of the White House against the government shutdown on January 10, 2019, in Washington, DC. - US President Donald Trump headed Thursday to the US-Mexico border to push his demand for a wall, a day after he walked out of negotiations with Democrats in a political crisis paralyzing the government. (Photo by NICHOLAS KAMM / AFP) (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
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The shutdown has affected just 25% of the government, but more than 400,000 workers have worked without pay because their tasks are deemed essential to keep the government functioning. The Internal Revenue Service, for example, ordered 36,000 furloughed employees back to work without pay on Tuesday.

Jeffrey Hirsch, an employment law expert and professor at UNC School of Law, noted that these federal agencies are still violating the Fair Labor Standards Act even though they have no choice but to make people work. “They know they’re making people work without pay,” he said. “That’s a clear violation of the FLSA.”

‘You can’t spend money that isn’t appropriated’

The Trump administration has already been hit with multiple lawsuits from federal workers — including two from labor unions and one from a group of federal employees.

The lawsuits claim the federal government is violating the Fair Labor Standards Act, as well as the 13th Amendment, which abolished slavery. Federal workers also assert that the Trump administration is violating the Fifth Amendment because it’s depriving them of their wages without due process.

For its part, the Trump administration is using a 135-year-old law called the Antideficiency Act to justify its failure to pay workers, Kotkin, the Brooklyn Law professor, noted. That law essentially says “you can’t spend money that hasn’t been appropriated,” she said. However, Kotkin noted, it would be more of a stretch for the president to use that law to require people to work while they’re not being paid.

“The Antideficiency Act only goes so far as to say you don’t get paid. It doesn’t say anything about having to work,” she said.

‘We’ve seen this before’

If the Trump administration’s argument seems weak, it may not bode well that furloughed workers forced to work without pay during the 2013 shutdown won a similar lawsuit last year. In February 2017, U.S. Court of Federal Claims Judge Patricia Campbell-Smith ruled that workers deemed essential during the 2013 shutdown should get twice their pay for a five-day period they worked without pay (the standard award under the FLSA).

As Hirsch, the UNC law professor, noted, “We’ve seen this before.”

To be sure, workers in the recent cases faced a setback this week when a judge refused to grant temporary restraining orders that would have either let workers stay home or forced the federal government to pay them.

But Hirsch believes the workers will ultimately receive double their pay under the FLSA, which, he noted, will add to the costs of the government shutdown.

“There are lots of ways a shutdown costs the government more money, and this is one of them. Every hour those... employees work, that’s more financial liability that’s likely to incur,” he said. “It’s just adding to the tally.”

Erin Fuchs is deputy managing editor at Yahoo Finance.

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