NTEU Challenges Constitutionality of Forcing Employees to Work Without Pay

Press Release January 9, 2019

Washington D.C. – The federal government should not be allowed to spend money that Congress has not appropriated, according to a new lawsuit from the National Treasury Employees Union that challenges the administration’s authority to force thousands of federal employees to work without pay.

The complaint, filed Wednesday in the U.S. District Court for the District of Columbia, alleges that the federal statute allowing employees to be required to work without pay during a lapse in appropriations is unconstitutional.

“If employees are working, they must be paid—and if there is not money to pay them, then they should not be working,” said NTEU National President Tony Reardon.

The lawsuit names as defendants the United States and the Office of Management and Budget (OMB). It alleges that the Antideficiency Act violates the Appropriations Clause of the Constitution, which does not allow the government to obligate funds that have not been appropriated by Congress. 

NTEU’s lawsuit also argues that even if the Antideficiency Act is constitutional, the OMB directive that authorizes federal agencies to except employees from furlough is inconsistent with the Antideficiency Act.  That directive, issued in connection with the January 2018 shutdown, has illegally authorized agencies to designate broad swaths of employees as excepted employees, which is at odds with the narrower language in the Antideficiency Act about imminent threats to human life and property.

“While a case can certainly be made that some federal employees, such as Customs and Border Protection Officers and others, are protecting human life and property, that line of reasoning gets quite shaky when applied to thousands of IRS employees being called back in order to process tax refunds—and to do so without being paid,” Reardon said. “That is not how the law works and that is not how this country should work.”

As an example of employees whose work involves the regular functions of government unrelated to protecting human life, the IRS is preparing to call back thousands of employees because the administration has decided to issue tax refunds during the shutdown. The employees would not be paid until the shutdown ends.

“In purporting to obligate the United States to spend money that has not been appropriated, the executive branch has usurped the legislative function by transferring to the President the power over spending that the Constitution vests in Congress,” the lawsuit states.

This constitutional claim comes on the heels of the Fair Labor Standards Act lawsuit that NTEU has filed in the Court of Federal Claims.  For an updated copy of that lawsuit, please click here.

NTEU-represented agencies affected by the lapse in appropriations include: IRS, Customs and Border Protection, Federal Law Enforcement Training Center, Commodity Futures Trading Commission, Environmental Protection Agency, Federal Communications Commission, Food and Drug Administration, Federal Election Commission, National Park Service, Patent and Trademark Office, Securities and Exchange Commission and the U.S. Department of Agriculture.

NTEU represents 150,000 employees at 33 federal agencies and departments.