October employment insights: impact of the government shutdown

In the shadow of the October 1st Government shutdown, with a possible default on administration obligations mere days away and talks between the Democratic and Republican leaders failing to alleviate impasse over the spending level, many (if not all) non-essential services have been shut down for the first time in seventeen years. On a national stage, what does this mean for the labor & employment and immigration world? Various entities have begun to roll out their contingency plans as outlined below.

DEPARTMENT OF LABOR (DOL)

According to the various inner-department contingency plans, the majority of the DOL operations are being suspended and staff are being furloughed. This includes those non-essential employees in the Bureau of Labor Statistics, the Employee Benefits Security Administration, Mine Safety and Health Administration, the Office of the Inspector General, the Office of Labor-Management Standards, the Office of Public Affairs, the Occupational Safety and Health Administration, the Office of Workers' Compensation Programs, and the Wage & Hour Division, most of which are authorized to continue certain functions in advance of appropriations on matters "of emergencies involving the safety of human life or protection of property." Needless to say, many DOL programs and services, which are not “critical,” have been impacted.

Additionally, The DOL operations pertaining to Labor Condition Applications (LCAs) and PERM Labor Certification Applications (“PERMs”) acceptance and processing have been heavily impacted by the ongoing federal government shutdown. Starting October 1, 2013, the DOL has ceased to accept or process LCA and PERM electronic filings. Since certified LCAs are mandatory for H-1B petition filing with the U.S. immigration service, and PERM applications are part of the permanent immigration or “the Green Card” process for foreign workers, and both proceedings are highly time-sensitive, the resulting strain on immigration proceedings adjudication is significant. While the DOL and U.S. Citizenship and Immigration Services (“USCIS”) are considering temporary solutions for the affected H-1B petitions, these proceedings are in limbo. We will keep you updated as to further developments.

NATIONAL LABOR RELATIONS BOARD (NLRB)

According to the NLRB website, only such department activities necessary to prevent an imminent threat to the safety of human life or the protection of property may be undertaken in the absence of specific budget authority. While certain necessary court actions, the Office of Inspector General hotline, and certain emergency contacts will remain operational during the shutdown, several services of the NLRB will not be accessible. The NLRB contingency plan outlines several deficiencies that will impact the public, including: case petition docketing, investigations, hearings and elections; unfair labor practice charge docketing, investigations, hearings, complaints, and settlements; administrative law judge and board decisions; resolution of workplace disputes (union and non-union); and typical Inspector General services.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Pursuant to the EEOC's contingency plan, only activities involving the safety of human life or the protection of property will continue. Specifically, the EEOC will: preserve the rights of aggrieved individuals under the federal employment discrimination statutes by docketing new charges and federal sector appeals; continue to litigate lawsuits where a continuance has not been granted; examine new charges to determine whether prompt judicial action is necessary to protect life or property and, if appropriate, file such action to obtain preliminary relief; maintain the integrity and viability of the EEOC's information systems; maintain the security of our offices and property; and perform necessary administrative support to carry out those excepted functions. The bulk of these activities will be handled by staff in the various EEOC field offices. Specifically, the EEOC will cease the following activities during the shutdown: (1) staff will not be available to answer questions from the public or to respond to correspondence from the public; (2) the EEOC will continue to accept charges that must be filed in order to preserve the rights of the claimant, such charges will not be investigated; (3) mediations will be cancelled; (4) federal sector hearings will be cancelled; (6) outreach and education events will be cancelled; and (7) FOIA requests will not be processed.

E-VERIFY

While law requires companies to employ only individuals who may legally work in the United States, E-Verify will NOT be available during the government shutdown and employers will not be able to access their accounts.

FEDERAL COURTS

The Federal Judiciary will remain open for business as usual for at least 10 business days, after which a reassessment will occur.

EMPLOYER TAKEAWAY

The longer the shutdown lasts, the greater the impact will be on private sector employers and the economy in general. The last government shutdown, which took place seventeen years ago cost taxpayers billions of dollars, including lost revenue and fees and back pay to workers who were furloughed. Regardless of whether Congress can patch things up, employers must continue to comply with all regulations and statutory provisions, such as Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, and the National Labor Relations Act. For now, if you have active matters with any federal agency, expect for them to be on hold. While these agencies may be temporarily out of business, the laws that they enforce are not.