Court of Federal Claims Issues Order Conditionally Certifying Shutdown Case as a Collective Action

On July 31, 2014, the United States Court of Federal Claims partially denied the Government’s motion to dismiss the claims of a group of federal employees who were declared “excepted” (or “essential”) and who had sued the government on October 24, 2013, on claims that the Government violated the Fair Labor Standards Act (“FLSA) during the government shutdown. After the denial of the Government’s motion to dismiss, the employees worked with the Government’s representatives and discussed whether and how to give notice to government workers covered by the lawsuit of their right to join the case.  The parties reached agreement on October 10, 2014. On October 16, 2014, the claims court Judge entered an Order conditionally certifying the case as a collective action, adopting the parties’ proposed forms of Notice, the proposed Consent to Join form, and the plan for giving notice, with modifications.

The Order, approved by the claims court Judge, defined the certified class as “Federal employees (a) identified as of October 1, 2013 for purposes of the Fair Labor Standards Act (“FLSA”) as employees, pursuant to 29 U.S.C. § 203€(2)(A); (b) classified as “non-exempt” under the FLSA as of October 1, 2013; (c) declared “Excepted Employees” during the October 2013 partial government shutdown; (d) worked at some time between October 1 and October 5, 2013, other than to assist with the orderly shutdown of their office; and (e) not paid on their regularly scheduled payday for that work between October 1 and October 5, 2013.”

The Order noted that the parties, as reported above, worked together to prepare the Notice that would be sent to federal employees regarding their ability to participate in the lawsuit. The Notice will inform federal employees that the government violated the FLSA for excepted employees who were classified as non-exempt under the FLSA and were not paid the minimum wage for all hours worked during the week of September 29, 2013 through October 5, 2013 on their regularly scheduled paydays. That minimum wage, according to the Notice, is $7.25 per hour. The Notice will also inform federal employees that the Government violated the FLSA for excepted employees who were classified as non-exempt under the FLSA and were not paid for overtime worked during the week of September 29, 2013 through October 5, 2013 on their regularly scheduled paydays. Finally, the Notice will inform employees that the Government did not violate the FLS as to excepted employees who were classified as exempt under the FLSA.

Employees will only have a certain amount of time to join the lawsuit after receiving the notice, which will be sent to employees on a date to be determined. The attorneys for the employees “believe,” per their statement, that it will occur in early 2015. From the “Notice Date,” recipients will have 105 days to join the lawsuit.

The claims court has not yet ruled on whether the Government is liable to pay excepted employees “liquidated damages,” per the Notice, over and above their regular pay. If awarded, “liquidated damages double the amount of minimum wages and overtime wages that should have been paid for work performed during the week of September 29, 2013 through October 5, 2013. Under the FLSA, an employer that violates the FLSA is liable for liquidated damages unless the employer proves that it acted in good faith and had reasonable grounds for believing that its act or omission was not a violation of the FLSA.”

In a statement on November 11, 2014, the attorneys for the employees stated that qualified employees “do not have to wait until [they] receive the Notice to join the lawsuit.”

For the above stated reasons, the claims court conditionally certified this case as a collective action and granted the parties’ request that the court enter the proposed order.

You can read the full Order here. 


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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