If Congress and the president cannot approve a stopgap funding bill by this Friday at midnight, the federal government will shut down. What will this mean for employers across the country? Because of the peculiarities of the federal budget process, this shutdown may not hit the nation’s employers as hard as prior shutdown events. Read on to get a better understanding of which federal agencies would be impacted and what to expect in the coming days (or weeks).
A Brief History Of Shutdowns
There have been 14 federal government shutdowns since 1981, when the Attorney General first interpreted budgetary law to permit such actions. Most have been brief: the first 10 were under five days in length, and four of those lasted just one day. There have already been two brief shutdowns in 2018, one that lasted three days in January, and a several-hour shutdown on the early morning of February 9.
But the 1995-96 shutdown endured for 21 days, and October 2013 saw the government hang a “Sorry, We’re Closed” sign on its front door for 16 days. There’s no telling how long this shutdown could last, especially given the dynamics at play with a lame-duck Congress and an incoming Democratic takeover of the House.
What Will Be Shut Down?
If the shutdown proceeds, you will see many federal services completely halted during the shutdown. In a typical shutdown, only those workers whose services are deemed “essential” to the operation of our country—air traffic controllers, FBI agents, TSA personnel, military, etc.—will be on the job, with the vast majority of federal workers sitting at home until a budget is agreed upon.
But this time around, things would be different—especially from a workplace law perspective. When the president signed a September “minibus” funding bill, he fully funded a number of federal agencies through October 1, 2019. That means that the U.S. Department of Labor (USDOL) and the National Labor Relations Board (NLRB), among others, will be fully staffed and operational during the duration of any impending shutdown.
As a result, we expect wage and hour compliance matters (handled by the USDOL), workplace safety matters (handled by the Occupational Safety and Health Administration, an offshoot of the USDOL), federal contract compliance (handled by the Office of Federal Contract Compliance Programs, another part of the USDOL), and all labor relations matters—including union elections, unfair labor practice charges, litigation, and similar events handled by the NLRB—will continue as usual.
Employment Discrimination Law
But the Equal Employment Opportunity Commission (EEOC) would be ravaged by any federal government shutdown. The minibus funding package signed into law a few months ago did not include any funding for the civil rights agency. According to its contingency plan released last month, its workforce of over 2,000 employees would be dramatically scaled back to only 103 staffers—some of whom would be working on a part-time basis.
During the 2013 shutdown, individuals who believed they were subjected to discrimination in the workplace were counseled to continue to file charges during the agency’s closure in order to ensure that statutes of limitation were not blown. This time around, there will be a skeleton crew of 61 staff members working in field offices across the country ready to receive these charges, but they will almost certainly not have the time or resources to begin or continue any investigations. In 2013, the EEOC received over 3,100 charges of discrimination during the 16-day shutdown, but no new investigations started and existing investigations languished. The shutdown led to a backlog that took over a month to work through.
In the event of another shutdown, employers who have questions about pending or closed charges will probably be unable to receive information during this blackout period. Expect to see all mediations and hearings cancelled, and any litigation directly involving the EEOC as a party to be suspended unless the relevant court does not grant a requested continuance.
Employers might not feel as bad of a sting when it comes to immigration-related matters, and certainly not as badly as they did in 2013. First off, the Department of Homeland Security (DHS) and its sub-agencies generally stay open during a shutdown, and that is expected to be the case in 2018. This includes U.S. Citizenship and Immigration Services (USCIS), which adjudicates the vast majority of immigration processes. Because USCIS is a fee-based agency which requires petitions and applications be accompanied by filing fee checks, these services were not generally impacted in 2013 and are not expected to be impacted in 2018.
With respect to how this shutdown would differ from 2013’s event, remember that many other federal agencies are fully funded and will remain open. Immigration officials interact with their counterparts at several other federal agencies in order to get their work done, and whereas these counterparts were not at work in 2013, many will be this time around.
For example, during the 2013 shutdown, USCIS was not operating at full capacity because the USDOL Department of Labor (USDOL) stopped processing Labor Condition Applications, which are essential prerequisites for H-1B, H-2 and E-3 applications. Moreover, the USDOL also ceased processing PERM/Labor Certification Applications, which are the first step in the majority of the permanent residence/green card process, and are the most common basis for immigrant visa processing and seasonal worker applications.
However, the State Department—not fully funded by September’s minibus bill—could be affected by the government shutdown. Consulates and embassies are responsible for the issuance of visas which allow foreign nationals to travel into the United States. Although this is a fee-based system, previous shutdowns saw delays and temporary stoppages of visa services because the State Department depends on other agencies for services such as calendaring appointments and background checks.
What If A Shutdown Is Averted At The Last Minute?
Before we conclude, it’s worth exploring what might happen if an eleventh-hour accord is reached before Friday’s midnight deadline. Congressional leaders may work with the president to implement temporary measures and postpone a possible closure over the holidays (as has been the case several times in the past few years). However, even if a shutdown is completely dodged or provisionally delayed, the threat of a stoppage is already impacting federal services.
Those federal agencies to be impacted by the shutdown (such as the EEOC) are currently dedicating their resources to preparing for a possible closure, which means that jobs that should be getting their full attention are getting something less or even completely shelved for the time being. You can expect delays in working with any federal agency on any matter right now, so plan accordingly.
These are just some of the ways we anticipate employers will be impacted by this particular federal government shutdown.