IRS Workers May Be Eligible for Double Pay During Government Shutdown
For 32 days, hundreds of thousands of federal government employees have been working without pay. Most of these workers are deemed “essential” and typically have duties that include public safety or preservation of life and property duties. Unfortunately, these employees may have limited rights to get paid during the shutdown.
On January 15, 2019, President trump announced that 46,000 IRS employees were being ordered back to work to help process 2018 tax returns and refunds. There is a growing fear that the prolonged shutdown will have a long term impact on the country’s economic growth. Getting refunds out is thought to help.
While we applaud the decision to recall government workers, we are deeply troubled that our elected officials have not figured out a way to pay them. While we are confident the government will ultimately pay all federal employees for wages lost during the shutdown, a promise of future pay doesn’t help put groceries on the table, pay tuition, make mortgage payments or pay auto loans.
Our federal workforce shouldn’t be forced to live on credit cards or beg for money. For some, they may lose their home or see their credit rating destroyed.
While the politicians feud, government workers have become forgotten pawns in a larger political battle. They are the victims suffering the most. (Our sympathies extend to government contractors who are also not getting paid and have no promise of back pay once the shutdown ends.)
We have seen in recent weeks a lawsuit filed on behalf of TSA agents, however a 2009 Federal Court of Claims decision said they were not eligible for relief because of provisions in the Aviation and Transportation Security Act. Other recent lawsuits, including one on behalf of air traffic controllers, also face steep legal hurdles.
More recently in 2017, the Court of Claims dealt with wage claims from so-called essential employees during a shutdown in 2013. Subject to some limitations based on the government’s reliance on the Anti- Deficiency Act and whether its actions were in good faith, the court acknowledged that federal employees are eligible to bring claims under the Fair Labor Standards Act. (More on that below.)
But what are those claims?
Does the fact that the government will ultimately pay its employees have an impact on damages?
These are important questions and the answers are not completely clear. We say that the future payment goes to mitigation of damages but under the Fair Labor Standards Act, workers are entitled to be TIMELY paid. A promise of a future paycheck doesn’t feed the kids.
And if the shutdown should go years without resolution as some have said?
Fair Labor Standards Act and IRS Workers (Taxpayer Service Personnel)
Government employees are subject to the Fair Labor Standards Act. That law, passed during the Great Depression, was designed to make sure employees receive at least minimum wage and receive premium pay (time and one half) for any hours over 40 performed during a 7 day period.
Employers that violate the law are liable for double back pay and attorneys’ fees. Should the government later pay its workforce – or should we say “when they are paid” – the government will likely get a credit for the amounts paid. We believe, however, that they are remain responsible for double back pay.
Some might say that this is excessive but employees are entitled to be paid timely. We can’t even begin to understand the stress these workers are facing. (The author of this post was unpaid in 1991 as a government worker in Maine. Many of his co-workers were forced to go to food banks in order to be able to feed their families.)
We believe IRS workers have the best chance for earning double pay. Why?The 46,000 recalled workers are deemed “non-essential” and not involved in duties typically associated with public safety or preserving human life. While the duties they perform are essential in the public’s eye, the government won’t be able to offer the same arguments as they would if the worker was a TSA agent or FBI agent.
Seeking IRS Customer Service Workers – Unpaid Shutdown Compensation
We are seeking IRS workers in the ATL Service Center and other areas of the country who are recalled to process returns and issue refunds. While we are sympathetic to CID agents who remain at work, we are limiting our wage investigation to those IRS workers who were recalled and are deemed non-essential by the Department of Treasury.
We are also unable to assist senior managers who are already exempt from the Fair Labor Standards Act due to their managerial responsibilities.
Our desire is that all federal employees get paid immediately for their hard work. Our proposed class action, however, is limited to recalled IRS employees deemed not essential but who are nevertheless recalled and are working without pay.
If you are a non-essential employee and are recalled and not receiving pay, we are interested in hearing from you as well.
For more information, visit our FLSA wage theft information page. Ready to serve as a class representative? Contact us immediately by email at
Due to the size of the potential class and the need to file quickly, we regret we cannot take phone calls at this time. All emails will be promptly answered.