Two Federal employee unions, the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU) filed suits on behalf of Federal employees who have had to work during the shutdown but have not been paid (“essential” or “excepted” employees). The grounds for the suits are that these government workers are covered by the Fair Labor Standards Act, which requires that workers get paid timely. However, under the Antideficiency Act, excepted employees cannot be paid until there is an appropriation.

I don’t know when these suits will be heard. However, if the judge rules in favor of the unions, there will be only two choices. Either no Federal employee who is in an Agency that isn’t funded works (including the TSA agents and Air Traffic Controllers) or an appropriation passes. If the airports have to shut down, the pressure to end the shutdown will be immense.

The only question that I have is this: does anyone know when these suits will be heard?

Follow up — According to the Washington Post, the judge could rule today.

From the Washington Post article:

Leon (the judge) said he planned to rule immediately from the bench — meaning he could issue a temporary restraining order compelling the government to pay its employees — a move that could affect the partial government shutdown and force movement in the White House or on Capitol Hill. In the event the government is forced to pay workers or allow them to go home, it could break the shutdown impasse or lead to critical jobs going vacant indefinitely.

“If he rules in our favor and determines it was unconstitutional for the government to require workers to come to work and not pay them, it should put pressure on political branches to come to some resolution and end the shutdown,” said Greg O’Duden, the general counsel for the National Treasury Employees Union, which has filed two lawsuits against the government.

Update. According to the Washington Post, the judge ruled against the unions. The shutdown continues…. 😦

A federal judge in Washington on Tuesday refused to force the government to pay federal employees who have been working without compensation during the partial government shutdown, rejecting arguments from labor unions that unpaid work violates labor laws and the Constitution.

U.S. District Judge Richard J. Leon said it would be “profoundly irresponsible” to issue an order that would result in thousands of employees staying home from work.

“At best it would create chaos and confusion,” Leon said. “At worst it could be catastrophic . . . I’m not going to put people’s lives at risk.”

Leon ruled against a consolidated claim that the National Treasury Employees Union and the National Air Traffic Controllers Association filed against the government, alleging that employees should not be forced to work without pay. The list of unionized employees who have had to work with pay during the shutdown include the Internal Revenue Service, Customs and Border Protection, the Food and Drug Administration, the Environmental Protection Agency, the National Park Service, the Agriculture Department, the Securities and Exchange Commission, and the Federal Communications Commission.