NATCA Files Suit Against the Federal Government Over Back Wages

Union attorney points finger directly at Donald Trump.

natca protest shutdown
NATCA's lawsuit says the White House violated the 5th amendment.NATCA/Facebook

As the partial government shutdown entered Day 25, the National Air Traffic Controllers Association, AFL-CIO (NATCA) today filed a lawsuit in the United States District Court for the District of Columbia on behalf of its 15,000 members who have not been paid for their work since the FAA's appropriations lapsed in late December. The suit asks for a temporary restraining order against the government, as well as an injunction demanding the government halt any additional pay blockages against air traffic controllers.

Because air traffic controllers are considered essential personnel, they must report for regular duty, despite not being paid for their efforts. NATCA’s vice president Trish Gilbert said the system was already strained because most controllers have been working mandatory six day weeks and 10 hour shifts. Controllers are also working without their regular support staff, personnel who have been furloughed. The suit seeks overtime pay and Fair Standards Labor Act minimum wages for all air traffic controllers affected by the shutdown.

Topping the list of defendants in the union's legal action are President Donald J. Trump and Acting FAA Administrator Daniel Elwell. Also named were officials from the Office of Personnel Management and Budget including Mick Mulvaney, OPM's Director, who is also currently serving as the White House's Acting Chief of Staff.

While explaining details of the suit, Molly Elkin, a partner with the Washington law firm Woodley & McGillivary LLP said, “Unless there is some kind miracle between now and tonight at midnight, Donald Trump gets to be the winner he wants to be and he says he is and will be on record as having the longest shutdown in American history.” She said the moral basis of the suit is, “the most basic standard, that when people work, they should be paid.” The suit draws its legal precedent from the 5th Amendment of the U.S. Constitution that says citizens may “not be deprived of life, liberty, or property, without due process of law.” Since controllers were not paid, there was an unlawful taking of property because these plaintiffs have an interest in the wages they earned.

When asked whether controllers have considered a slowdown or a sickout, Gilbert said the union would not endorse any kind of job action, adding there has been no increase in air traffic controllers calling in sick, despite working more than their 40 hours. She does worry however about the 1,800 controllers who are currently eligible to retire, fearing even if the shutdown is settled soon, may decide they’ve definitely had enough. Mass retirements could stress the National Airspace System even further that it already is, because, “controller morale is really bad right now.” Gilbert said some trainee controllers who were furloughed because they are not deemed essential, have already begun taking jobs driving Ubers to make ends meet. “We don’t want to see regular controllers trying to work a second job after they’ve worked their regular shift. A continued shutdown is not sustainable.” When asked how long already fatigued controllers can keep up their regular overtime pace before something in the system gives, Gilbert said, “If there are not enough personnel in the towers and radar rooms, controllers won’t be putting airplanes in the air. We need the government open today.”

Elkin said people representing her law firm attempted to serve legal papers related to the suit this morning, but were turned away at both OPM and OMB because the buildings were essentially closed. She added that should the court not find for the union, her firm will continue legal action against the government.

**Added at 3:42 EST Tuesday January 15 - ** NATCA today reported, "U.S. District Court for the District of Columbia Senior Judge Richard J. Leon denied the Union’s request for a temporary restraining order in NATCA v. U.S. We are encouraged that he acknowledged the ongoing hardships our members are facing because of the shutdown. In recognition that time is of the essence, the judge ordered expedited briefing on NATCA’s motion for a preliminary injunction. We will continue to oppose the injustice of our members working while being deprived of their earned wages and look forward to making our argument on Jan. 31."