By Meagan Flynn
A group of federal employees working
without pay during the partial government shutdown are likening the predicament
to involuntary servitude in a lawsuit filed last week, accusing President Trump
and their bosses of violating the 13th Amendment.
The lawsuit is one of several pursued
by federal workers against the Trump administration as the government shutdown
enters its 24th day, the longest in history, leaving hundreds of thousands of
employees without a paycheck and, in many cases, struggling to pay bills.
Employees at U.S. Customs and Border Protection, the Bureau of Prisons and
Federal Aviation Administration have already filed lawsuits against the
administration through their respective unions, among others.
But this case, filed Wednesday in the
United States District Court for the District of Columbia, diverges from the
others by invoking the 13th Amendment, which abolished slavery and involuntary
servitude in the aftermath of the Civil War.
“If this is not resolved soon,
affected employees may find that beginning February 1 they will no longer have
health insurance,” Kator said. “And, if this lasts ‘months or even years’ as
the President has suggested, there will be defaults, foreclosures and even
bankruptcies. A promise to pay back pay will not forestall those consequences.”
The 13th Amendment argument may face
an uphill battle, though. Michael LeRoy, a law professor specializing in labor
and employment law at the University of Illinois, said that the standard for
meeting the definition of involuntary servitude is extremely high. “The courts
have a very narrow perception of it,” he said. “Courts don’t tend to view
pressure as coercion.”
For example, the Supreme Court held
in 1988 that pushing mentally disabled men to work on a farm for no wages by
threat of institutionalization did not amount to involuntary servitude, because
“psychological coercion” isn’t covered under the amendment. For similar
reasons, circuit courts have held that threatening unpaid or underpaid migrant
workers with deportation is not involuntary servitude. Teenagers forced to
complete mandatory community service as a condition of graduation also isn’t
involuntary servitude, as many disgruntled parents have tried to argue in
court. And forcing an impoverished man who couldn’t afford a $3 tax to perform
compulsory road work as an alternative also is not involuntary servitude, the
Supreme Court ruled in 1916.
That case, Butler v. Perry, is the
“closest case to the government forcing somebody to work and being the
defendant in a 13th Amendment case,” LeRoy said. But Butler was a private
citizen threatened with imprisonment for not working, whereas the government
has the authority to call in employees to work without pay under the
Antideficiency Act. The act prohibits the executive branch from spending money
Congress hasn’t yet appropriated — including wages.
The problem with the law — as Todd
Dickey, an assistant professor at Syracuse University, pointed out in a
commentary for The Washington Post — is that it runs contrary to the Fair Labor
Standards Act, which lays out minimum-wage requirements for government employees.
That’s an argument federal employees have made successfully in the past, Dickey
noted.
But as for involuntary servitude,
LeRoy said there isn’t a precedent for the situation the federal employees have
presented. At the same time, he said, a government shutdown has also never
lasted this long, putting these federal employees in uncharted legal territory.
“If it’s true that somebody is
threatened with termination if they don’t show up for a job when they’re not
being paid today, that’s an unsettled legal issue — a court could rule that is
legal coercion,” LeRoy said. “Losing your job for not working without pay is,
in common vernacular, coercion. Whether that satisfies the legal definition of
coercion is an open question.”
Congress passed legislation on Friday
ensuring furloughed workers will receive back pay once the government reopens,
which would still need to be signed by Trump. Kator argues that this won’t make
a difference to the employees' 13th Amendment claims, because “the bottom line
remains that federal employees are being compelled to work without pay for an
indefinite period of time,” he said.
And there’s no telling how long that
situation may last, with a deal for Trump’s border wall nowhere in sight. If
Democrats don’t give in to Trump’s demands to pass legislation including $5.7
billion in border wall funds, the president has threatened to declare a
national emergency to build the wall. On Sunday, Sen. Lindsey O. Graham
(R-S.C.) urged Trump to reopen the government and continue negotiating with
Democrats, and only resort to a national emergency if no progress is made.
If the shutdown ends in the immediate
future, LeRoy said, the promise to pay back the workers would weaken their
case. But if the shutdown lasts “months or years,” as Trump has said is
possible, then “what this begins to look like is a form of indentured
servitude,” LeRoy said, referring to the 18th century mechanism by which
servants worked for masters for a period of time without pay, but were paid
much later at the end of their service.
“That’s really what it will look
like,” he said. “I think the longer it goes on, the fact that you have
legislation in place is less significant to the government’s defense. The more
this goes on, the more this swings in the direction of employees.”
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