Are Federal Workers Being Forced Into Involuntary Servitude?

Yves here. Welcome to the world of workers as capitalist cannon fodder.

By Michael H. LeRoy, Professor of Labor and Employment Relations, University of Illinois at Urbana-Champaign. Originally published at The Conversation

Many federal employees are being ordered by the federal government to work without pay until a spending bill is enacted.

Some workers object, arguing that they are being pressured to show up for work with no clear prospect of a payday. Some individuals have sued claiming that this violates the 13th Amendment, which abolished involuntary servitude.

Will they win?

For now, the answer is likely no. In my law review article, “Compulsory Labor in a National Emergency,” I found that legal protections against forced labor often fail to help workers.

Why Most 13th Amendment Lawsuits Fail

Every year, a small number of workers prevail in involuntary servitude cases.

The legal standard for arguing that someone is working against their will is evidence of physical or legal coercion. The Supreme Court articulated the standard in 1988 in a case about two mentally disabled men working on a farm.

The best way to explain the standard is with an example.

In Mouloki v. Epee, a nanny named Christine Mouloki sued the husband and wife who employed her for wages and damages. She alleged that the family refused to let her leave their suburban home near Chicago.

The court concluded that a “scheme, plan, or pattern intended to convince a plaintiff (person) that serious harm or physical restraint would result if she did not continue to perform the labor and services” constitutes involuntary servitude. At trial, the nanny won her case.

But plenty of involuntary lawsuits fail. The most common are from high school students whose school districts require them to perform community service as a condition to graduate.

In one such case, students were required to provide 50 hours of community service during their four years in school. Parents sued, alleging a violation of the 13th Amendment.

The court rejected the 13th Amendment claim, stating: “Graduation from a public high school is an important opportunity, but the threat of not graduating does not rise to the level of ‘physical or legal coercion.’”

Pressure, Not Coercion

Federal employees working without pay fall in the gray area between the high school and nanny scenario.

So far, their situation does not present the coercion in the nanny’s home confinement case. The main impediment for the federal employees’ case is that lack of coercion, not lack of pay for their labor. In a preliminary ruling, workers lost a motion for an injunction but they are scheduled to make a similar motion soon – and as time passes, their case improves.

For now, however, these employees can call in sick, take vacation time or simply not answer the phone or emails from a supervisor. A court would likely view an order to work without being paid as unfair, or a violation of wage laws, but not coercion.

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40 comments

  1. William Beyer

    Our marvelous legal system of common law, where precedents pile up endlessly, splitting hairs so finely that the “original intent” or plain meaning of the words of any law cease to matter.

    Reply
    1. Bobby Gladd

      Hear, hear.

      Corollary to that is the patronizing inference that we Great Unwashed serfs just don’t get the nuances of “judicial construction.”

      Reply
  2. GK

    The suggestion that federal employees who have been called back to work without pay could call in sick, take vacation time, or not answer the phone or emails from a supervisor is not fully accurate. Those employees have been called back to duty on the basis that their work is essential. They can request annual leave, but their agency is not obliged to grant it. While they certainly could call in sick if they are sick, employees who abuse sick leave are subject to discipline. Likewise, employees who report for duty but refuse to answer the phone or e mails (or refuse to acknowledge messages recalling them to duty) also can be disciplined. Whether action will be taken would depend on the managers involved, who are themselves working without pay and likely will have to cover for employees who avoid working. Many federal employees will be understandably reluctant to take that risk.

    Reply
    1. Etherpuppet

      Sounds like the definition of “essential” is imbalanced. Just as the job/work may be essential, so is the paycheck. Recognition of this fact is sadly lacking.

      Reply
    2. rd

      I think the more successful lawsuits are going to be about the definition of “essential”. So Coast Guard search and rescue, air traffic controllers, TSA etc. are essential for public health and safety unless we simply shut down all transportation in the country.

      IRS employees to process tax forms, not so much. It won’t impact life and property much if a tax return gets processed a month later so a refund can be issued.

      So the Trump Administration has been trying to classify jobs that are politically important as essential (processing tax refunds and agricultural loans). I suspect that some courts will have a different opinion than the Trump Administration on this. Of course, the Administration or Congress may end up having to declare the courts essential in order for the lawsuits to play out.

      Reply
    3. Nell

      Wouldn’t it be a case of breach of contract? Employee signs a contract with employer to provide specific services and employers signs contract promising to pay for those services. By withholdiing payment, the employer is in breach of the contract, surely? Still, doesn’t solve the ‘human’ problem of letting people down. Hard to be a ‘bad’ citizen when it is not in your nature. Or, equally hard to say ‘no’ if your boss is a twat and will make you pay one way or another.

      Reply
  3. a different chris

    Lordy, lawyers. I don’t understand them, or maybe they don’t understand anything. I guess he got to it at the end of the post: they can quit and go work elsewhere.. So there goes the 13th. Don’t know what the rest of it was all about.

    Anyway: Are you going to quit a good job and go print T-shirts? Probably not, but as long as they don’t prevent you from giving notice you don’t have a case.

    To be clear, I think they should have some sort of case. I’m just saying this is Amurica, Love It or Leave It.

    Reply
    1. Brian (another one they call)

      Lawyers always fall back on the excuse that there is nothing they can do about anything, because a precedent says that this is settled law. They refuse to challenge the impression because they want to become judges and no one is going to promote an uppity lawyer as a judge if they don’t follow the hallowed rules of order. Most judges are “law and order” supporters and many are well paid for it.
      We have lost our rights to protection under law to comfort the legal class and their directors. It is a sign of rot that one can only truly see if you look beneath the surface. If I had told someone that the government would step in and relieve millions of people of their homes and property in 2008 onward to benefit the rich, you wouldn’t have believed me. 99% of those folks were robbed and the laws were rewritten to protect the thieves. The south and midwest have ensconced laws that allow the police department to sieze their property without following any of the requirements of common law, due process and no one has done anything to stop them. The banks wrote the laws and the legislatures hurried to protect them to our detriment.
      It is not democracy or representative government that we have. What it is you have to determine for yourself.

      Reply
    2. jrs

      Why more will probably hang around through no end of abuse than quit, is unless you are maybe top 5% of workers in terms of demand for your skills, they can look for work in the private sector if they have skills sought there, however working conditions, pay, benefits, are all likely to be WORSE. Maybe local government might offer something worth taking. And personally I haven’t known almost anyone able to get a full time (not contract) job in any sector these days, without searching for at least 5 months first, so it’s no quick fix.

      Temporarily driving for Uber or something, yea that’s temporary and can be dropped just as quickly when they get their real jobs back.

      Reply
  4. False Solace

    Ultimately the worker has the ability to quit and find employment elsewhere. Which is just fine with conservatives who approve of the shutdown, since it supposedly demonstrates how “unnecessary” people like food inspectors and security guards are. They don’t care if the government loses experienced employees. Also, the most employable employees leave first since they have more options — if your goal is to drown government in a bathtub you consider that another plus. If you just want a government that serves its citizens and performs competently, maybe not so much.

    Reply
  5. Fred

    The GOP always talk that they wish government worked more like business. In business you can’t get your workers to work for free.

    Reply
    1. rd

      The post-Reagan GOP has also said that government workers are not essential and get in the way of a productive society. Yet it is odd, that the GOP Administration also classifies more government workers as essential than the Democratic Administration.

      Reply
      1. Summer

        Not really odd. I suspect the GOP feels they are more essential when the GOP is in control of more of the govt branches.
        Gotta have the servants with the power.

        Reply
  6. rps

    According to the American Federation of Government Employees (AFGE) Union, “450,000 feds are working without pay while 350,000 have been furloughed.”

    InTheseTimes reported, “On December 31, the AFGE sued the Trump administration for denying pay to federal workers during the partial government shutdown, alleging that the action was a clear violation of the Fair Labor Standards Act.

    On January 9, the union filed an amended complaint in the lawsuit, charging that the government is in violation of minimum wage laws.”

    The NYT reported Thousands of Furloughed Federal Workers File for Unemployment Benefits

    Excerpt: …Labor Department reported 10,454 initial claims by federal workers for the week that ended Jan. 5, doubling the previous week’s figure. Thousands more have applied since, state officials said… Federal employees are covered by a separate unemployment insurance system parallel to that for other workers.

    However, “The Labor Department and many employment lawyers say that filing a claim now is not an option for all of the roughly 420,000 federal employees who are “essential” and are working without pay during the partial shutdown. According to the department, workers in those circumstances are “generally not eligible” to receive benefits.”

    “…when the shutdown ends and retroactive pay is granted, workers will generally have to reimburse the state for their unemployment benefits.” Oh fun, how’s that gonna work out- docked pay from a one-time lump sum paycheck or per paycheck?-

    AFGE reports- “The Financial Relief for Feds Act allows federal employees who are working without pay or locked out of work without pay, as well as contractors whose sole source of income is their federal contract, to make multiple withdrawals from their retirement accounts such as Thrift Savings Plans (TSP) and IRAs without the 10% penalty that usually applies.” Uhm, what if you’ve been on the job less than a year? Those recent employees IRAs and TSP plans may have negligible funds available.

    The kicker is furloughed federal workers are able to claim unemployment benefits BUT the ‘essential workers’ are not eligible for UE. Legally, they may have a chance in winning the lawsuit since its over 450,000 employees (AFGE #) affected; plus children and spousal dependents which could easily be over 1 million people dependent on one employee paycheck.

    Reply
    1. rps

      Oops :( ….I know y’all know what I meant: not 1 million people dependent on one employee paycheck (alternate universe?) but possibly 1 million family members who are dependent on the workers paychecks…. I give up, it must be 5 o’clock somewhere

      Reply
  7. Tomonthebeach

    What is the rationale for current federal workforce laws? To ensure the government functions in case of national emergency. What emergency might occur that would make paying employees impossible? Aside from a nuclear attack on DC or the Mint, the answer is the government going bankrupt. While that idea was surely popular in the 1930s, Modern Monetary Theory – probably better to call it “monetary insight” -obviates bankruptcy. As we see in Venezuela, MMT is at work, and when controls fail, inflation (or deflation), not bankruptcy results.

    Of course, the real reason for the law is to prevent strikes like PATCO. In fact, if all the FEDs quit, which they may legally do, then POTUS has the option to fire them. S/he cannot force that many people back to work at gunpoint. However, that would be insane as it takes over a decade in most cases to master the laws, regs, and networking required to be effective as a civil servant.

    What Trump is succeeding in doing, is driving out the best and brightest from the federal workforce – trying to permanently damage our government. Won’t Putin be delighted. First, nobody likes to work for an asshole, and I have changed jobs a few times for that reason alone (jumped from one federal job to another). Second, FEDs are not overpaid. During my career, I passed up offers that paid over $100K more than my salary – I stayed because I was proud of my role in the system. If I was 45 today. I would be actively looking for a new career because this is not the first time – unlikely to be the last. Retroactive pay is bullshit because it does not come with interest that matches the cost of interim loans – Trump’s “adjustments.”

    Finally, besides the impact on the effectiveness of the workforce that could last for a decade or more, there is the impact on the country – a less effective government. Commerce is being retarded. Research funded by NSF, NIH, and other agencies is being upended and many studies will have to start over. Banking is being stymied. Criminals are getting away with – murder, because the FBI has no cash to investigate. There oughta beya law.

    Reply
  8. jonhoops

    Rolling sick outs, work to rule, wildcat strikes. I’m sure they could shut down the country and make these fu*kers in DC scream. It takes collective action, that’s what unionism is. They can’t fire everyone, so if everyone stops working at once we get to see a real shutdown.

    I suggest the workers follow the example set by the Truckers in Brazil. #RealShutdown #NoPayeeNoWorkee #FeelthePain

    https://truthout.org/articles/the-brazilian-truckers-strike-how-whatsapp-is-changing-the-rules-of-the-game/

    Reply
  9. cripes

    Aside from the elitist response that little people always “adjust,” take out loans or walk into supermarkets where they will be given food, because they know them(?), there is the bonus that the last bastion of unions, public sector workers, are emasculated in the process.

    Seems like a win-win to them.

    9 hours ago Dems offer bill to give 0% interest loans to federal workers.

    At 2:20 ET, Trump announces Mitch McConnell will introduce a bill for a three-week “temporary” un-shutdown of federal government. Now it’s about the drugs?

    I don’t remember much enthusiasm to help the millions foreclosed, evicted, or laid off in 2008, including me.
    Not then. Not now.

    ““One in five employees lost their jobs at the beginning of the Great Recession. Many of those people never recovered; they never got real work again.””

    Billionaire condo pyramids will sprout in Midtown Manhattan, little brown people around the world will be bombed, and the dispossession of the once mighty wage-earners will end with Imperial cities ringed by multi-cultural bantustans of slave labor bussed in for service work.

    This is just another lash of the disaster whip to immunize the populace to every assault and outrage from strip searches to eviction to homelessness, $800 bottles of insulin or 25 hr minimum wage jobs with no fixed hours.

    As a nation we are cowering in a corner with our hands covering our faces.

    Reply
  10. nothing but the truth

    it is definitely not good to ask people to work without wages.

    However, it should be kept in mind that in the past, all federal workers have been reimbursed for the days they did not work (“paid vacay”). This is also not good. It should be illegal also.

    It would help to remember the average federal salary is 125k+. They might have a few acorns stashed away, and there is something called a credit card.

    Finally, it is not too bad for Federal workers to feel what it feels like for the despicables.

    Reply
    1. jrs

      oh please paid vacation should be illegal, how pathetic.

      And yes many despicables, deplorables, eh in reality working and middle class people of all races, genders, etc. don’t get paid vacation (nor a living wage). But they should!!! Every other 1st world country on earth has mandatory paid vacation.

      You aren’t making anything better for any despicables by saying noone should get paid vacation. Try with arguing that EVERYONE should get certain basics like that and build from there. Sure there are plenty of government workers (and non-government workers) who don’t care at all how anyone less lucky is fairing. Don’t be them, demand not just bread but roses for all.

      Reply
      1. nothing but the truth

        if they are paid for that time when they did not work, it should be deducted from their accrued vacation.

        That’s all i meant.

        Reply
        1. marym

          1. “Average” can be very misleading depending on the range and numbers.

          2. From your link:

          In 2014, the average federal employee salary was $84,153

          The 119K number is with benefits.

          3. The median salary from the same timeframe was $76K (link)

          4. From your link:

          Currently, over 300,000 federal employees earn over $100,000

          so about 15% of the workforce.

          5. I don’t know if these numbers includes contract workers, many of whom are non-white-collar workers (custodial, food service), and probably not raking big bucks.

          There was a time when civil service was generally at the low end of US compensation relative to comparable jobs in the private sector. There have been decades of flat wages and declining benefits in the private sector, while wealth has been concentrated upward. The latter is the problem, not civil service workers making too much.

          The demonization of public sector workers is deliberate and harmful all workers. It serves only those who profit from under compensated labor.

          Reply
          1. marym

            Adding:

            costs the government (aka taxpayers)

            Adding: re “cost the taxpayer”

            What does that even mean, other than to promote an anti-government and anti-worker agenda? All workers cost the employer (public or private). All workers produce value.

            In the public sector the value is distributed among the employers (the public) and the workers (salary/benefits). The “cost” to which ruling class demonizers of public workers object is the portion of value they would prefer to extract for themselves as they do from private sector workers. This is an anti-worker objection. There’s nothing for the private sector worker to gain by subscribing to it.

            Reply
            1. The Rev Kev

              So a side-effect of ‘shrinking’ the government would be to release a swarm of highly-trained and experienced people into the workforce for the private sector to pick over and choose for their own wants & needs without going to the expense of training up people themselves. I bet that others have thought of that.

              Reply
        2. none

          “The average federal worker costs the government (aka taxpayers) $119,934.”

          That sounds like the loaded salary. That’s the amount you have to budget in order to hire someone to do job X, and it’s usually much more than just their salary and benefits. It includes EVERYTHING: office space, admin support, equipment like their computer, business travel and similar expenses, etc. For usual white collar work it’s about 2x the base salary, so it sounds from your number like the average federal salary is around 60k, which I can believe.

          Of course the most “essential” jobs like the TSA basically pay shit.

          Reply
    2. JCC

      @nothing but the truth

      What are you smoking? Federal Wage Schedules are posted as required by law. All you had to do was look.

      Try USAJobs if you want to see what most Fed jobs pay… not anywhere near what you are dreaming they pay.

      Anyone working for the Fed and making $125K a year is very high up the food chain.

      https://www.fedsmith.com/2018/02/24/average-federal-employee-salary-states-compare/

      This link gives average by State, note that average is probably a good deal higher than the median wage (by State).

      After paying FICA, taxes and insurance costs, the median take home pay for most Fed Workers is probably much closer to $500 a week at best. Try raising a family on that in the “Good Ole USA”.

      And anyone that thinks paid vacations should be illegal lives in the Stone Age.

      Reply
      1. Alfred

        What he seems to be ‘smoking’ is that Oxycodone of the middle classes: libertarianism. His initial remark decrying “paid vacay” seems to me to imply a clear preference for a libertarian ideal of universal ‘self-employement’ under whose regime all workers become ‘independent contractors’ and so get paid on a day-labor or perhaps piecework basis, It’s simple: no work one day? then no remuneration! No explanation required! Vacation thus appears not as (partial) compensation for productive labor but rather as time not spent generating profit. Unfortunately, in my estimation, that ideal no longer counts as marginal. Instead it is widely embraced as the bedrock principle underlying the gig economy, wherein everyone is either a ‘temp’ or an ‘independent contractor’, as well as an ‘Uber driver’. We ridicule that ideal, and its implications, at our collective peril, when we should take them seriously enough to resist them. No widespread, the ideal of ‘universal self-employment’ corresponds to a now accelerating trend as the structure of the ‘gig economy’ displaces that of what I would call the ’employment economy’ (viz., the one entailing jobs, wages, fringe benefits, annual performance reviews, and a balancing of ‘labor relations’). In recent years I have heard from my self-styled ‘conservative’ relations and their associates, increasingly frequent yelps of resentment over the allegedly ‘unearned’ Federal holidays and vacations ‘granted’ to public employees at all levels — not to mention sick leave ‘for people who are never really sick’ and disability benefits ‘for people who are not really disabled’ — all paid for by (you guessed it!) “our tax dollars.” I cannot blame all of that resentment on economic circumstances. Some if it, I think, stems from plain selfishness, some from racism, a little bit from principled libertarianism, and some perhaps from organic dementia. But a lot of it surely feeds on anti-government or anti-democratic propaganda (absorbed from TV, car radio, websites, and chain emails) and exposure to the prosperity gospel. Whatever its cause, it is certainly disheartening, and ugly, and insidious, and — in my America — pervasive.

        Reply
    3. witters

      “Finally, it is not too bad for Federal workers to feel what it feels like for the despicables.” – You mean those who work for Fred?

      Reply
  11. The Rev Kev

    Maybe Trump should suggest that all those government workers that were called in to work without pay be awarded a one-time bonus equivalent to double pay for the time of the shut-down. Then sit back and see what the Democrats say. Would they be so stupid as to fall into that trap?

    Reply
  12. VietnamVet

    For a while, federal jobs where a showcase on how the private sector should treat their employees; leave, insurance and a pension. The following post here on the Yellow Vests depicts the real world. It takes two gig jobs today to match one real job before the Reagan/Thatcher counter revolt. The safety net is torn. If there were any jobs that paid twice as much as a federal jobs; the workers would be long gone to greener pastures. All employees are being treated as serfs. Deplorables realize this. It has the Davos Elite worried. Like the USSR, the propaganda no longer works.

    Reply
  13. Michael

    The real outrage is the ridiculous notion that if Congress and the President fail to pass and sign a budget (which amounts to 12 appropriation bills) that somehow the government is precluded from spending money and must stop work. The obvious solution (which will never pass Congress) is that there should be an automatic continuing resolution kick in and allow Federal operations to continue at last year’s budget with the only prohibition to beginning new activities. Imagine if GM announced that their board of directors failed to approve a budget, so workers cannot be paid, but will continue to build vehicles until that get around to making a budget.

    The problem with shutting down the government, typically, (and this is the first time we’ve actually begun to experience anything close to an actual shutdown) is that everything that might inconvenience the public is deemed essential and goes on as usual (other than people not getting paid). If the President or Congress really want to shutdown down the USG, then they should be forced to go all in and not just National parks. Close down FAA and TSA, close borders.

    Finally, every member of Congress that fails to pass a budget should be banned from ever running for Congress again. You can bet, the President will always get something to sign (and even if the President refuses to sign, Congress can overrule that).

    Reply

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