The U.S. federal government shutdown has continued for more than a month, with no probable end in sight. While many government employees are furloughed, an estimated 420,000 others are deemed “essential employees” and are required to continue working without pay during the shutdown. Several essential employees have recently filed putative collective action lawsuits, claiming that the shutdown violates their wage-and-hour rights under the Fair Labor Standards Act because they are working without pay. Several of the plaintiffs are customs/border protection officers, as well as prison guards, and have been previously classified as non-exempt by the Department of Homeland Security.

Plaintiffs in these new lawsuits are likely to succeed based on precedent from several years ago. Non-exempt, essential employees brought a similar lawsuit during the 2013 government shutdown, and the court held that the government’s failure to pay these employees during the shutdown violated their rights to minimum wage and overtime pay. The court additionally awarded liquidated damages in that case.

Until the government reopens and the purse strings are untied, essential employees are going to continue to work without pay. Thus, it will be difficult for government employers to avoid allegations of wage-and-hour violations. Those employers can control, however, their responses to any employee complaints about pay (or lack thereof) so as to avoid a retaliation claim under the Fair Labor Standards Act. Government employers should proceed with caution in issuing any discipline or otherwise making employment decisions as to non-exempt essential employees until the shutdown ends and those individuals have received back pay for their work during the shutdown.