Via America’s Lawyer: Mike Papantonio is joined by Attorney Steve Babin to talk about a lawsuit being brought by federal workers who are being forced to work without pay during the government shutdown.


*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Mike Papantonio:             As unpaid federal workers struggle with tough financial choices during the shutdown, a federal employees union has decided to bring a lawsuit against the Trump administration. We’re joined by attorney Steve Babin to discuss whether this lawsuit has merit and maybe where it’s going to go. Steve, we’ve seen this before. We saw 2013 lawsuit was brought on behalf of union workers.

The way I see this is there are essential union workers. I mean, they truly are essential. They, if we don’t have law enforcement, federal law enforcement, we have a problem. If we don’t have federal firefighting, we got a problem. Give me your take on where this is going.

Steve Babin:                         So where this is going, Pap, is there are essential employees, like you said, and those are essential employees have filed a lawsuit against the government on behalf of all of the essential employees. And there’s over 400,000 of them who are working currently without pay. The lawsuit’s going to go, what will probably happen, Pap, is Congress will institute legislation to give back pay to these employees.

Mike Papantonio:             Did we see that before?

Steve Babin:                         We did see that before, however, the lawsuit stays alive because there are penalty damages under the law, which they sued under. It’s called the Fair Labor Standards Act. And those penalty damages provide for basically doubled back wages. The federal government owes you $100, but you sue them. They owe you $200 under the Fair Labor Standards Act.

Mike Papantonio:             The statute provides that?

Steve Babin:                         The statute provides that, they’re called liquidated damages.

Mike Papantonio:             Okay, well, so here, here’s the way this is problematic. First of all, if I look back into 2013 lawsuit, a judge did say if my, if my memory’s correct, a judge did say, yes, we’re going to give you these double damages. Some of those people are still waiting to be paid, and so I guess it’s good on paper, but what does it, how are, you know, let’s humanize this. How are federal workers, how were they affected by this? Because we, we miss that, don’t we?

Steve Babin:                         I think we absolutely missed that Pap. I think that the administration itself misses it too. It says, it’s a sign of how detached the Trump administration is from day to day realities of the government workers. But in America today, if a regular average worker, say a TSA employee goes two weeks without pay, well that’s going to be problematic and if they go a month without pay, it could be detrimental to their family.

So on a day to day basis, you have the office of personnel management issuing emails and letters to the employees saying to do things like this with your landlord, if you can’t pay rent this month, offer to paint the house or do some maintenance.

Mike Papantonio:             Wait, back up, back up. The government is involved in the, and the unions and the government I guess are trying to tell these people how to stay alive. So this…

Steve Babin:                         That’s right.

Mike Papantonio:             So this first anecdotal information, go paint a house if you can’t pay the bill?

Steve Babin:                         Yeah. These are, these are sample letters that were provided online by the office of personnel management. They were, they were taken down after they got some bad publicity. One of the, the options was to tell your landlord, I’m not getting paid right now, I will, I’ll paint the house or do you need some maintenance done? If that person may or may not have some, some maintenance skills and that’s how you stay alive and get the rent paid.

Mike Papantonio:             Yeah. Okay. So, it’s deplorable that we’ve gotten to that point, but it’s just so ridiculous that it is almost, it almost is laughable to tell, to tell an employee, some of these people have been at this for 15, 20 years. Gee, I’m sorry you can’t get paid work something out with your landlord. Work something out with the grocery store, you know, work something out with a gas station where you have to buy fuel. So the human factor on this is huge.

Look, first of all, there was about 2 million federal employees, little, little more than 2 million federal employees out of there. About 400, 450,000 do fall into that class of essential employees. Explain what essential employee is. I mean, that’s a classification of federal employees.

Steve Babin:                         It’s a classification, just like you said, Pap, someone who protects the health and safety of individuals and the government. Also, individuals that work in the judiciary are generally termed essential employees. They try to keep the courts running. Oftentimes only the criminal courts will remain running. I know currently, or when they shut down the US attorney’s office, they’ll shut down the civil side first and they’ll shut down the criminal side second is the way it’ll work. So there is, the line is drawn at basically if that person protecting the health and safety of anyone in our country, then their jobs essentially.

Mike Papantonio:             Do the unions, I’m curious, have the unions planned on, surely they’re looking ahead. The unions are taking money from employees. They know that shut down is always possible. Have they put together any kind of workable fund that I, I don’t know what to call it, an emergency distress fund. I mean well look, we’re asking federal firefighter to go put their life on the line and oh, by the way, Mary, oh by the way, Joe, we can’t pay you for that, but we’re good for our word.

Well no they’re not really good for the word because we know what happened in 2013. 2013 the federal government said, yes, Mr. Firefighter, we owe you double and they still haven’t paid them to this day. These people have not been paid that double. What’s your take?

Steve Babin:                         So the unions don’t have, as far as I know, a distress fund for this situation. However, this this lawsuit and the employees affected aren’t just union employees. There are employees, they are in federal unions and there are employees that aren’t and that the union, the union’s lawyers tagged along with the lawsuit and filed the complaint along with some civil lawyers, civil trial lawyers and DC that filed on behalf of everybody union and non union employees.

Mike Papantonio:             Steve, thanks for joining me. This is, this has potential to go on for quite a while.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.