Federal workers who check their e-mail during shutdown will be breaking the law | Hacker News Reader

Federal workers who check their e-mail during shutdown will be breaking the law

washingtonpost.com

70 pointstareqak71 comments

An acquaintance of mine who works for the feds as a very small cog in our central govt controlled economy, told me that its a strange novelty as an isolated topic, but the real story is how it interacts with other policies. It mostly affects people who violate the rules which theoretically separate work email from personal email (which is enforced to WIDELY varying levels based on dept, locale, and individual supervisor) and people who use work email as a backup authentication aka if you get locked out of google/facebook/whatever and have your work .gov/.mil email address as a backup authentication method, well, you don't have a backup authentication method right now.

Not for the government, but I know some coworkers who do the same thing. Terrible idea to not completely decouple work and personal technology. There's no recovery process you couldn't achieve with a google, live, and yahoo account.

Well, sure there's a recovery process you couldn't achieve with those three examples, there's having a fourth backup of using your work email. Its like a math proof trying to prove there exists a largest integer N, theres always N+1.

I do agree that far too many people rely on precisely one backup, if they even have that many.

There are peculiar catch 22 issues like I used to buy books from amazon and once they arrive decide if they're worth staying my property in which case I don't submit a reimbursement voucher or if they're not so good in which case I submit a reimbursement voucher. So technically I don't know if I'm doing personal or business purchasing until long after the transaction.

Another weird corner case is related to health insurance which is tied to employer (if any) in the USA. So emailing an insurance company about health related topics using the work email seems appropriate until you can't use that email anymore even though you're still employed and insured there. Ditto retirement accounts. There are probably people out there with health insurance and retirement accounts who have no non-work related internet access... maybe if they're a forrester stationed in the middle of nowhere or an undercover cop who doesn't want to be caught talking about benefits with the FBI HR person on his personal iphone.

The concept of undercover agents in this mess is interesting - they can't just quit, but their entire support teams could conceivably be on furlough.

Could someone more familiar with U.S. laws explain why is it mandatory for federal employees not to work, even if they are unpaid?

I'd imagine there are people who would rather continue with their side projects, research or other fun parts of the job rather than sit at home.

If a federal employee is asked to do any work whatsoever by a supervisor when on furlough (i.e., not getting paid), the U.S. government could be sued for a violation of the 13th amendment. Making it illegal for federal employees to do any work whatsoever means that the government can place the charge back on an individual if they choose to work.

IANAL, but it's generally illegal for employers to permit employees to work without pay. The same way you can't legally "volunteer" to be paid less than minimum wage.

It comes down to an opinion by Jimmy Carter's second Attorney General, Benjamin Civiletti[1]. The gist of his opinion, which I need to find a better link for, is that since Congress has sole authority over the budget it is illegal for the government to spend money that was not preauthorized because it undermines Congress' authority. Furthermore, he cited some obscure statute as the reason volunteering to perform normally paid functions would be illegal.

[1] http://www.npr.org/2011/04/08/135247483/who-raised-the-stake...

Edit: His opinion was based on a strict interpretation of the Antideficiency Act[2], the key provisions of which are:

The Antideficiency Act prohibits federal employees from

* making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

* involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

* accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

* making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

[2] http://www.gao.gov/legal/lawresources/antideficiencybackgrou...

A few reasons:

First, they're unionized. Understandably, the union is against unpaid labor of any kind. It sets a precedent that is more problematic than anything.

Second, we have a Federal minimum wage. You're not allowed to make less than that in a job. Therefore they would have to be paid something to still be in compliance with the law.

Finally, while one person can go into an office without incurring massive costs, if you have an entire office come in, then you need to make sure receptionists, janitors, kitchen staff, parking attendants, etc are on the job.

Unions have nothing to do with it. Neither do costs. It's the law.

How do interns work? (In the general sense of compliance with the minimum wage statute.)

Paid internships are generally above minimum wage. My lowest paid internship was $10/hr, highest was $15/hr. Interns, however, are not legally supposed to be doing production work or run-the-business kind of work. They're there as a learning experience similar to a classroom. They can do project work and attend meetings.

Interns generally aren't classified as workers. They're getting experience in exchange for their time. The employer can't immediately gain from an intern's work. As long as the employer follows the guidelines of the intern regulations, they don't have to follow minimum wage or pay the intern at all (similar to how students don't get paid by their university for attending class).

Unpaid internships are illegal[1]. Unless you are the government, in which case you exempt yourself from the law.

[1] http://www.dol.gov/whd/regs/compliance/whdfs71.htm

Is there actually an exemption for government interns? You didn't cite that part of your post.

Your link says: There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation.

Which is directly contrary to the point you cite it to support.

Until recently, interns slipped through the cracks somehow. A recent court decision determined that interns actually aren't magically exempt from the law just because they're interns, though, so expect a lot fewer unpaid internships from now on.

http://bigstory.ap.org/article/unpaid-internships-jeopardy-a...

The determination wasn't new, that was just a high profile instance of a successful suit.

"First, they're unionized"

Only about a quarter[0] of federal workers are unionized. It isn't even legal for many to do so.

[0] http://www.federalnewsradio.com/204/3203888/Amid-widespread-...

Also, more than a third of that quarter is postal workers.

You can't volunteer your labor for a for-profit or government agency[1]. It violates the Fair Labor Standards Act. And you're thinking under the assumption these employees are on a mandatory vacation. That isn't the case. They are all furloughed. Doing side projects and fun jobs doesn't guarantee them any compensation. In fact, to get the money from the missded days is going to require another act of Congress to authorize backpay.

It's a really shitty time to be a government employee.

[1]http://smallbusiness.chron.com/labor-laws-volunteering-workp...

I work for the Navy (paycheck says DoD); when they furloughed us to 80% time, they told us they didn't want us working unpaid overtime because it would send the wrong message to upper management (that message being "hey, you can cut 20% of our budget and still get the same results!"). With the exception of the obvious mission critical support stuff (where shifts were rearranged), they wanted things like phones going unanswered.

It makes sense to work "unpaid" overtime in a startup, or a business where it will advance your career or help you succeed. Unpaid overtime in the public sector is rarely rewarded; most who do it are really idealistic or just care about getting the job done. And while I love writing software, if they tell me I might be arrested for working on government code, I will just spend my extra time on my personal projects at home. Or hiking, climbing, playing music, etc. Once the furlough is over, I (and many others I know) will go back to putting in the unpaid hours to get the job done.

good insight on why not is not wise to work during the strike, but do not answer the "illegal" aspect mentioned in the "question"

Fair point; I was mostly responding from my POV, and mostly to the second part. Yes, many of us in the government are geeks who love to code, and have to be threatened with arrest to not work overtime :) The law is the law, and it doesn't always make sense (or the conclusions that are arrived at via the law don't make always match up with "common sense"), but a lot of this is political anyway.

What employment law in US says in case of forced unpaid holidays? In Europe worker must be given part of salary and an offer for termination (with bonus) within two months.

Is that true of all employees in Europe? Is that true in every country in Europe?

Should be in EU. European Commission dictates some minimum in most laws. I guess there are exceptions such as contractors.

I lived in 3 different countries (Italy, France, Germany) and yes, this rule is everywhere. The details may change, but the core is the same.

But I'm not not sure about those yankies up north in Britain :)

There is such a law in the UK and it is based on a minumum number of weeks pay plus a week for each year worked. Something along those lines, anyway.

Pretty sure there's an EU directive covering this but whether or not it is implemented into law in all member states, I don't know.

That said I have a lot of friends across Europe and I can say that they all live in a country where effectively being made redundant invokes some minimum number of weeks of pay that must be given as a lump sum.

Russia here. Not only this, but if you're terminated by the boss, you have to be paid triple your monthly salary as a compensation — remnant of the soviet social-oriented legislation. Of course, a lot of people (and almost everyone in IT) gets most of the salary off the books to save on taxes, and if the company wants to fire someone, it would offer him to resign and then find some violation that he committed if he won't (to fire him on this grounds), but the laws are still in place

I'd be interested to see what the English law is. I couldn't find anything immediately here, but I only looked for a short while.

(https://www.gov.uk/browse/working)

But the Citizen's Advice Bureau has some information here (http://www.adviceguide.org.uk/england/work_e/work_rights_at_...)

Here's a useful link:

https://www.gov.uk/redundant-your-rights/redundancy-pay

So it seems that if you are temporarily unpaid or on reduced pay for 4 weeks in a row, or 6 weeks non-consecutively in a 13 week period, you can claim redundancy pay.

I am not sure what the EU-wide regulations are.

In NL, employees are hired per term. Meaning you have a 6-12 month contract, and if the employer wants to lay you off or fire you, he has to pay out the rest of your contract. There are some exceptions of course (1 month period at the beginning where either party can terminate, gross negligence, stealing, absence, etc). After 3 years the employee and the employer have an 'indefinite' contract.

This system means that if the employer needs to reorganize, it needs to do so with some government involvement (a sort of civil court which looks at the case). Usually the employee is compensated in some way... usually based on how long the employee has worked there and how bad the financial situation is at the company. "We have lots of cash on hand but our board of directors didn't approve the budget" wouldn't go over very well with the courts, I presume.

The system has it's downsides (employers are cautious to hire), but it also means that you can't just fuck around with your finances and lay-off / furlough your employees because you don't feel like making important decisions. An employer can't just shift the financial burden of bad planning to the unemployment system.

That is... insane.

Exactly how is enforcing agreements between employer and employee insane?

Sure, there are some minimum numbers enforced by the governemnts, but the agreements tend to increase them.

What's insane to me is that people aren't free to negotiate their own agreements...

Negotiated agreements aren't really 'agreements' when one party holds all the cards ( in the case of an employer, money the employee needs to live ).

Hence legislation, which is basically a bigger party with even more cards imposing its will.

One side of the agreemenr isn't even a person; it is an organization.

Actually, usually it is organizations on both sides of the agreement. At least here in .se.

Originally the rules originated in long term agreement between employer organizations and unions, and was later codified into law. And even if union memberships are way down from what they used to be, their agreements are seen as guiding lines for how other working agreements are made.

This is different because it isn't a forced unpaid holiday, this is the federal government unable to pay its employees until they have a budget.

That said, employees will be paid retroactively once the gov't gets back to work.

There's no guarantee that employees will be paid retroactively, it's just what happened last time. It takes an act of congress.

And there is a big difference between people who showed up to work during the shutdown and people who were told to stay home during the shutdown.

True, I should've made that clear. But I wouldn't want to be the representative who voted against paying federal employees at the next election.

You would think that, but who knows. I'm surprised by the number of DC-area Congressman who voted to shut down the government even though it puts their own constituents out of work.

We vote for whoever is put in front of us, and most of us don't vote in primaries. It's money and primaries that members are afraid of right now. No surprise.

I thought the DC area was dominated by Democrats?

The only reason they're trying these shenanigans is they think no one will remember come mid-terms next November.

Civilian federal government employees haven't had a cost-of-living salary adjustment since 2010.

I put nothing past this Congress.

Civilian federal government employees haven't had a cost-of-living salary adjustment since 2010.

Just to be fair to Congress (not that I'm any fan of Congress), the administration did not request a cost of living increase in its budget for FY 2011, or 2012, so it wasn't just Congress. (It did for FY 2013, but it got shot down in Congress.)

Nothing prevents the Congress from adding a COLA to the Presidential proposal. The GOP-led Congress under the Bush Administration did it all the time.

That's true, but there's a difference between then and now: AFAIK Bush did not make not giving pay increases to Federal employees an explicit policy. Obama has.

Actually the ones behind these shenanigans are doing it because they hope people will remember come the mid-terms. At least, they hope the people they represent will remember (and literally do not care about the rest).

Most of the people behind this are only in Congress because their safe districts value these sorts of extreme stunts over actual governance. Not being sufficiently extreme can result in losing a primary challenge.

Which is also why there's a fracture in the Republican Party over this move.

The congresspeople behind this mess need only please their safe district. But the congresspeople not in safe districts, and Republicans who run for statewide or federal offices, are terrified that voters will remember these sorts of stunts in subsequent elections. Their chances to win will (continue to) crater.

Any retroactive pay will have to be specifically specified for furloughed employees in further budgets. There is no requirement for retroactive pay. Any retroactive pay is a "goodwill" gesture for saying "Sorry we messed up so bad." The very definition of furlough is a temporary unpaid leave.

Even if this is done, there are plenty of people furloughed today who will never ever get paid (contractors).

Oh, I know. I was a civilian contractor for the Army Corp of Engineers during the last government shutdown.

In Europe worker must be given part of salary

As other people mentioned, employment laws vary a lot in Europe - and even within the EU there aren't uniform laws.

If you work for the government and you care about checking your work email when you're home, you're doing it wrong. :)

I would be amazed if they even have email.

Have you ever been on the phone with the IRS, or a state bureau or the treasury (or whatever) and in the normal course of conversation and workflow you suggest emailing them a document ... or using any reasonable workflow whatsoever ?

The answer is not only "no", but "no, because I don't have email here". Absolutely stupefying.

Let me rephrase your story using HN-centric terms:

You: "Hello IRS, I want to send you a sensitive document over an insecure channel that another department of government is hoovering up."

IRS: "No."

:-)

You can't assume that e-mail is a reasonable work flow. It's reasonable for the IRS to have a policy of taxpayers not sending sensitive accounting documents to random employees' email accounts.

I've never had that experience, and every state and federal office I've worked in, or known people who have worked in, has email.

They may also have procedures that limit what communication channels documents for particular uses can be received through that prohibits using email for certain functions, but they have email.

Actually, I have family who recently retired from US government employment. They did have email, but the MS Exchange quota was ridiculously small, even though exchanging CAD drawings with contractors was very much part of their job. Also, things like Dropbox were blocked.

I was amazed that this level of IT stupidity was possible until I learned that the IT people there didn't even report to the local management of their (fairly sizable) facility. No wonder they weren't required to actually help people get their jobs done.

My wife is an economist and she almost threw her monitor through the window after seeing government websites showing "This website is closed for the shutdown" instead of the normal, static data she needed.

Ha, this scenario could be straight from Snow Crash!

"Hundred Year Old Law Doesn't Make Sense In Internet Age, Columnist Says"

I'm not sure it's the law's fault. The Federal government is not designed to work without a budget. In fact it's specifically designed to not work without a budget.

I think it sounds like a good idea. If you're not paying people, you shouldn't be allowed to ask them to work.

Agree, it makes sense. But it's a real bummer that you're not allowed to work even if you really, really want to. Say, for example, you're an NIH researcher being forced to pull the plug on a long-running experiment that you'll have to start over again from scratch.

That should qualify as essential staff not furloughed

We've got a world-famous scientist speaking at a global conference over here. A few hours before he was due to speak he was told he could not, due to the furlough. It's crazy, because he's already here!

Yes, it is really messed up, but it's the only way of stopping employers saying "You don't have to work, but if you really love your work you can continue".

I think when it's the government, there should be major consequences if they can't pay their bills. It's absolutely insane that this is happening at all, and ludicrous when you consider why this is happening.

The law makes as little or much sense in the Internet age as in any other age. Pre-internet, you'd be just as barred from working on files or reports or whatever you might have in your home as you are from checking your work email. Casually breaking the law just leaves more of a trail in the Internet age and is thus a larger risk-surface vs. "No, really, I didn't make notes on the Foo-report during the shutdown".

In that sense, the law makes MORE sense now, since it can be effectively enforced.

Reply on news.ycombinator.com