WASHINGTON-Federal employees of still-unfunded agencies, including those who staff the Federal Communications Commission and the Commerce Department, are waiting with bated breath this week to see if Shutdown III will take effect Jan. 26, when the government’s continuing resolution that put them back on the payroll after 21 days of unpaid furlough expires.

Even though workers at unfunded organizations officially went back to work Jan. 11, many of them still have not been paid for their time off the job. The delay can be blamed in part to the blizzards that paralyzed most of the East Coast for several days, but there also has been talk about computer glitches and slow decision-making by some agency management.

According to Robert Tobias, president of the National Treasury Employees Union that is spearheading the legal campaign to bar “excepted” federal employees (which included those in the FCC’s Auction Division) from being forced to work without pay during a shutdown situation, “There is a good likelihood that things will be shut down again.”

Tobias, whose group has aligned itself with the American Federation of Government Employees on this matter, said targeted appropriations would fund those most favored programs and agencies that meet with the approval of House Republicans; those that Congress would like to downsize or omit altogether, like Commerce and the FCC, could receive only a fraction of needed operations appropriations-or even nothing-for the fiscal year.

This ongoing case puts a legal spin on workers’ rights. Instead of making government workers pawns in the budget tug-of-war between the Clinton administration and congressional Republicans, the court and the executive branch need to answer questions regarding the definition of employment and the constitutionality of Treasury Department actions during the last shutdown.

The unions and the Justice Department-which is representing the administration’s position on these and other issues-will present oral arguments Jan. 29 to U.S. District Judge Emmett Sullivan.

Another shutdown could be advantageous for the unions’ case because the same excepted employees probably would again be ordered to work, while others would be locked out.

The unions contend that forcing excepted employees to work without pay, on penalty of discipline, violates the Fair Labor Standards Act and certain government statutes mandating that federal employees “are entitled to basic pay in accordance with the federal schedule.” The unions also challenge the constitutionality of the executive branch’s practice of “obligat[ing] the Treasury to fund large segments of the government during periods of lapsed appropriations.” They argue that only Congress can appropriate monies for that purpose. In this instance, any monies taken out of the Treasury for continuing resolutions, including funding the FCC and Commerce, would have been deemed illegal.

On the other hand, Justice wrote that unless federal employees could demonstrate any real or immediate threat to their lives if they were not paid to work during a shutdown, “Congress will refuse to appropriate funds for payment of employee salaries during a future lapse in appropriations.” In addition, Justice said that the lag time in paying workers after Shutdown II ended was not due to actual policies that implemented the shutdown but, rather, to lack of appropriations.

Shutdown or no shutdown, any ruling made by Judge Sullivan regarding federal employees’ rights will move directly to the U.S. Court of Appeals. The question is: If the judge rules in favor of the unions, and if there is a third shutdown Jan. 26, will excepted employees be allowed to walk off the job during the appeals period?


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