The Trump administration are "using this as an opportunity to RIF and remove thousands of federal employees," Heidi Burakiewicz said.
| Guest: | Heidi Burakiewicz |
| Title: | Partner with Burakiewicz and DePriest |
| Summary: | As the current shutdown tops the 35-day record of 2018-2019, the impact on the federal workforce grows. The administration has signaled it may withhold back pay from furloughed employees and proceed with mass reductions in force, despite clear legal protections. |
Interview transcript:
Eric White: In your experience of federal lawsuits pertaining to back pay during shutdowns, this one is going on and on pace to perhaps even be longer than the longest one in history just because we’ve really seen no movement or headway. What are we in for here and what have been your thoughts as you’ve seen this shutdown play out?
Heidi Burakiewicz: I wish I could answer the question about what we’re in for as people have been saying over and over since January 20th, this is unprecedented times and that continues here. It looks as though the shutdown has the potential to last as long as the last one, which lasted for 35 days, from December 2018 through 2019 and as far as sort of what we have in store for us, it’s unclear. The administration is threatening to not pay federal workers who are furloughed. They are using this as an opportunity to RIF and remove thousands of federal employees just because they work on programs that this administration does not endorse. Once again, federal workers are under attack and it’s unnecessary.
Eric White: Yeah, the threats of not giving back pay, I was curious on what effect that could potentially have for any future litigation. We’ve heard the president’s tweets mentioned in several federal workforce-related lawsuits that are currently ongoing between federal employee unions and things of that nature. Could that be invoked when someone like yourself or a class action lawsuit in the future going for back pay during the shutdown? What effect does that have on it or does it not have an effect at all? Am I overthinking it?
Heidi Burakiewicz: Well, during in 2019, Congress amended the Anti-Deficiency Act specifically to confirm that employees, whether they are accepted and working during the shutdown or whether they’re furloughed, that they will be paid at the earliest date possible after the lapse in appropriation ends. So to me, the law is quite clear that these employees are all entitled to back pay once the lapse of appropriation ends. So we’ll have to wait and see if the Trump administration actually follows through with its threats to not pay those workers who have been furloughed. And then of course, I envision that there’ll be legal action that will be taken if that is to take place.
Eric White: And so on that notice, like I said, would the Anti-Deficiency Act be the main focal point of an argument for any future lawsuit since the administration seems to have just ignored it and including taking it down from certain websites and everything else. I’m just wondering what any possible defense could be if the law is the law. Is it just a matter of trying to wait these folks out and hope that not as many will come forward looking for back pay?
Heidi Burakiewicz: I’m not sure what this administration thinks the defense would be. The law, as I said, it’s pretty clear to me that federal employees are guaranteed pay as soon as possible after the lapse in appropriation ends. I can’t speak for this administration and why they would choose not to follow that clear-cut law.
Eric White: Gotcha. All right. We’re speaking with Heidi Burakiewicz. She’s a partner with Burakiewicz and DePriest. On the reductions-in-force, that is something that is also unprecedented. Rifing in agency, I know that that’s not pertaining to the lawsuits that you worked on in the past, but how much more difficult does it make it to endure being either furloughed or accepted work and then, all of a sudden, you also get a rift notice in the mail. I can’t imagine that that’s going to go unnoticed as well in the in the courts, right?
Heidi Burakiewicz: Yeah, absolutely. There’s already litigation that’s been filed. For example, in the Northern District of California to stop the reductions-in-force that the administration is pushing forward during the shutdown. AFGE and the democracy groups, Democracy Defenders, Democracy Forward, are at the forefront of that as they have been with so much to protect federal workers. There is currently a temporary restraining order in place, I believe, that they filed for preliminary injunction yesterday to keep these illegal RIFs from moving forward. And I just can’t emphasize, there was an article, we’ll get the quote not right, but there was an article in the Washington Post several months ago talking about how the administration purposely wanted to basically torture the federal workforce and they’re using this shutdown as an opportunity to further do this. All of the attacks on the federal workforce are just not necessary, threatening not to pay the furloughed workers, rifing employees during the shutdown. Absolutely, even if there is a lapse in appropriations, it is not necessary for the Trump administration to attack the workforce the way they are.
Eric White: Any suggestions for employees that are going to be looking to enact their right to go to court after all this is said and done? I don’t know if there is any, you obviously save the RIF notice if you have it, I guess. But is there anything that former or current federal employees should do if they are looking to go that direction once the shutdown has ended and things get back to normal?
Heidi Burakiewicz: Well, I hope that the RIFs do not take place, that the unions who have been just instrumental in protecting the federal workforce and really trying to save democracy, I hope that their lawsuits are successful and that the RIFs that the administration has tried to put forward during the shutdown, that they’re able to stop them. If not, I would recommend any federal worker who has a RIF notice that is going forward. There’s the Federal Workers Legal Defense Network, which is providing an army of volunteer attorneys who are providing help to federal workers who need it, such as people who are experiencing these RIFs. So absolutely reach out, try to get help and challenge these illegal RIFs that are happening.
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Terry Gerton is host of the Federal Drive and has been working in or with the federal government for more than 40 years.
