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The ongoing government shutdown has affected individuals and businesses throughout the country.  But what does it mean for employers?  Read on for the inside scoop!

The most significant way employers are impacted is through the closure (full or partial) of various government agencies.  Because this is only a partial government shutdown, it is business-as-usual at some agencies for Fiscal Year 2019.

For example, the Department of Labor, Occupational Safety and Health Administration, and the National Labor Relations Board all remain open and fully operational.  This means wage and hour audits and investigations, safety investigations, and investigations of unfair labor practice charges should all proceed normally.  Similarly, administrative trials, such as at the National Labor Relations Board, should also be unaffected.

By contrast, the Equal Employment Opportunity Commission (“EEOC”) has not been funded and its functions have been cut back significantly.  For instance, while the EEOC is still accepting charges from employees and requests for reconsideration of certain decided cases, it will not respond to inquiries about pending charges or take action on requests for reconsideration.  Similarly, the EEOC will accept Freedom of Information Act requests but will not respond to them.  Mediations have been canceled.  For cases pending in the courts, EEOC lawyers have sought to stay these litigations.  Of course, the decision on these stays is up to the judge in each case, but as long as the judge permits, the litigation will be held in abeyance.

Some employers will also lose access to a valuable government service.  Because funding for the Department of Homeland Security has been affected, E-Verify is currently unavailable.  According to the government, this means employers will be unable to:

• Enroll in E-Verify;
• Create an E-Verify case;
• View or take action on any case;
• Add, delete or edit any user account;
• Reset passwords;
• Edit company information;
• Terminate accounts;
• Run reports; and
• Resolve Tentative Nonconfirmations (“TNCs”).

To minimize the burden caused by E-Verify’s unavailability, the government has announced the following measures:

• The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
• Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

The government also reminded employers to remember they may not take adverse action against an employee because their E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.  The government will issue further guidance regarding the “three-day rule” and resolving TNCs once the shutdown has ended.

Of course, state governments are not affected by the shutdown.  Therefore, state agency proceedings should continue without any interruptions.  Additionally, employers must be sure to continue all employment law-related compliance programs.  This includes properly paying employees, providing employees with any required notices, and filling out Form I-9s, among other things.  Any violations committed during the shutdown can still be investigated after the shutdown.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.