The U.S. Antideficiency Act calls for a partial government shutdown when Congress fails to appropriate annual funds to agencies. As Congress and President Trump cannot agree on appropriations spending, the U.S. government is in the midst of the longest shutdown in U.S. history, which began as of 12:01 on Saturday, December 29, 2018.
Certain agencies had already received budgetary funding, so they remain unaffected by the shutdown. However, other agencies were unfunded and are, therefore, experiencing the effects of the shutdown. As such, employers are being impacted by the shutdown. The following alert addresses the shutdown’s effect on employers.
U.S. Department of Labor (DOL)
The DOL was fully funded at the time of the shutdown, so it’s fully operational, meaning it will still engage in employer audits and wage and hour investigations, as well as litigation. However, some courts have suspended all litigation where the U.S. government is party.
DOL’s Office of Foreign Labor Certification is unaffected by the shutdown. This means that the agency is processing permanent labor certifications, labor condition applications, prevailing wage requests or applications for temporary labor certifications. However, an incredibly high volume of H-2B applications overloaded the iCert portal and caused a system outage, so employers should expect processing delays.
U.S. Citizenship and Immigration Services (USCIS)
USCIS will continue to process immigration applications and petitions, but employers should expect processing delays. During prior shutdowns, USCIS temporarily accepted extensions without certified labor condition applications; however, USCIS has not stated if it will grant extensions.
U.S. Equal Employment Opportunity Commission (EEOC)
The EEOC is currently closed because of the government shutdown. As a result, a limited number of EEOC services are available.
Claimants are still required to file a charge of discrimination within the legally-required time limits. The EEOC has stated that these time limits will not be extended because of the shutdown.
New and pending charges will not be investigated, nor will the EEOC take action with regard to requests for reconsideration. If a claimant already received a notice of a right to sue, the time limits for filing the case in court is not suspended, so employers can still be subject to litigation over some EEOC charges.
Further, all EEOC scheduled mediations are cancelled.
Employee Onboarding
The E-Verify system, which many employers are required to utilize within three business days of a new hire, is unavailable during the shutdown. This means that employers will not be able to verify a new hire’s eligibility to work. The shutdown also means that employers cannot view cases, change or create an account, or access any of E-Verify’s customer support.
Employers are still advised to complete Form I-9 in accordance with the law. After the shutdown, an employer can submit an E-Verify case and may be able to assert an affirmative defense if the government claims it hired an unauthorized worker.
Federal Contractors
Employers who are federal contractors may not get paid during the shutdown. The issue of payment may be addressed in the contract itself, and if an employer has any doubt about payment, it can contact the contracting officer.
Other Effects
All workplace safety matters (i.e., in the jurisdiction of Occupational Safety and Health Administration), federal contract compliance (Office of Federal Contract Compliance Programs), and all labor-management issues, such as union elections, unfair labor practice charges and litigation under the jurisdiction of the National Labor Relations Board (NLRB) will operate as usual.
If you have any questions regarding the impact of the government shutdown on employers or other labor or employment law issues, please feel free to contact the author of this Alert, Gordon Berger, a partner in our Atlanta office, or the FordHarrison attorney with whom you usually work.