As soon as July 15th, state employees could start missing checks, according to comptroller Leslie Geissler Munger, who addressed the media today on the highly potential state government shutdown. But if she gets her way, they'll get paid, even if it takes a court order to do so—which, if a budget is not passed, it will.
The reason? FLSA, or the Fair Labor Standards Act. Essential employees covered under FLSA are required to be paid minimum wage and any overtime they accrue. FLSA covers a lot of state employees.
Who does it cover? That's kind of the problem.
"Our state's antiquated computer systems and databases make that task very difficult, to identify which employees actually fall under the Fair Labor Standards Act and which do not," Munger said.
That's 263 different systems dating as far back as the early 1970s, covering some 65,000 state employees. And even if the state were to identify which employees are covered by FLSA, actually paying them the minimum wage required under FLSA would be yet another Herculean task.
"I can tell you that as a comptroller, the requirement of paying minimum wage and overtime for only certain employees, deciding which of those employees are essential to accurately comply with the law, will be very difficult if not impossible, given our state's current financial systems," Munger said. "It is difficult to make changes to them—they have to be manually overridden. We'd have to go in reduce pay to minimum wage, we would behind on benefits accrual and pension accrual, etc.—to go back in later and try to catch those up would be a logistical nightmare, if it's even possible. It's logistically really not possible to do on a short term basis."
The moral and practical thing to do, according to Munger, is just to pay everyone, since they'll have to be paid anyway once a budget is passed—and the state could be fined if the right people don't get paid. This is basically what happened in 2007, when her predecessor, Dan Hynes made the same argument about FLSA and got a court order authorizing payments—on the heels of a lawsuit by AFSCME—to some 40,000 state employees.
But as Rich Miller points out, the court specifically said that the court order was not precedent. Or: Don't come in just expecting us to do this again. And now the comptroller, and the attorney general, are back, hat in hand.
Not that they're quite on the same page. Rich Miller has their back and forth. The gist is that the attorney general is trying to figure out who needs to get paid under FLSA and requesting the state be permitted to do it, while the comptroller contends that even if the state knew the broad outlines to comply, it can't logistically do it.
The good news? According to Munger, we'll be a bit better prepared to triage the victims the next time the ship of state hits an iceberg.
"I'm proud to tell you all that we just recently signed an agreement, and are beginning to put in place, a new statewide accounting system. We began working to get the pilot up and running yesterday. Next year at this time, if we face a similar circumstance, we will be in a position to identify essential employees, and to be able to make some of these changes to more easily comply with federal law," Munger said.