While federal employers wait out the impasse that has sent many of their employees home and others to work without pay, private-sector employers shouldn’t think they’re immune to the impact of the partial federal government shutdown.
When funding for many federal departments ran out December 22, many agencies and services dealing with employment came to a standstill. For example, the Equal Employment Opportunity Commission has posted information detailing how the shutdown has limited its services. Also, the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) posted information alerting employers that their services are unavailable “due to a lapse in government appropriations.”
Just nine of the 15 federal cabinet-level departments are affected by the shutdown, according to Dinita L. James, an attorney with Gonzalez Law, LLC in Tempe, Arizona. The six others had their fiscal year 2019 funding appropriations bills passed by Congress and signed into law last September. The federal Department of Labor (DOL) was one of them.
That includes the Office of Federal Contract Compliance Programs (OFCCP), says Consuela A. Pinto, an attorney with the Fortney & Scott, LLC law firm in Washington, D.C., so federal contractors must still comply with all deadlines, audits, and other OFCCP business.
The shutdown is a result of a standoff between President Donald Trump and many Democrats in Congress over immigration policy, particularly funding for a wall along the border with Mexico. Trump says a wall would stop people from entering the country illegally. But the shutdown has stopped the system the government uses to detect when workers not legally authorized to work in the United States apply for jobs.
Impact on E-Verify
Richard L. Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina, points out that the unavailability of the E-Verify system, which employers use to verify that employees are authorized to work in the United States, is a major impact on employers.
The E-Verify website outlines the services employers will not be able to access and notes that employees won’t be able to resolve E-Verify Tentative Nonconfirmations (TNCs), which are issued when information entered in E-Verify doesn’t match records from the Social Security Administration or data available to DHS.
“We understand that E-Verify’s unavailability may have a significant impact on employer operations,” the E-Verify website states, adding that because of the shutdown, policies have been implemented “to minimize the burden on both employers and employees.” For example, the “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify. Also, the time period during which employees may resolve TNCs will be extended, and the number of days E-Verify isn’t available will not count toward the days the employee has to begin the process of resolving a TNC.
The website also emphasizes that “[e]mployers may not take adverse action against an employee because the 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 website also says that the lapse in government appropriations doesn’t affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work.
Impact on EEOC
The EEOC is open for very limited functions, Pinto says. For example, the agency is still able to take complaints to keep employees who are filing charges from missing deadlines, but the agency portal is closed.
Pinto advises employers involved in EEOC actions to make sure they’re ready to respond when the agency reopens. Those employers will need to check the status of their case and learn new due dates.
Even though charges can still be filed, the EEOC “can be very slow in processing charges,” adds Rainey, editor of North Carolina Employment Law Letter. “This shutdown will only add to that.”
While the shutdown persists, no investigations will be conducted, Rainey says. “For employers, this will provide breathing room if they were in the midst of preparing a position statement or responding to a request for information.” But he adds that employers need to be ready to act quickly when the government reopens.
James says in her state, Arizona, the EEOC was “extremely behind” in processing charges before the shutdown. “Midyear, investigators in Phoenix were being assigned charges that were filed in 2016,” she says. “The shutdown brings everything to a standstill except charge filing. That means an already backed-up district office is going to be even further behind and getting worse every day.”
It’s not just federal employees finding themselves off the job. Pinto says that often private-sector employers are contractors at federal facilities, and those workers may be off work. For example, maintenance and cleaning crews at closed federal facilities may not be able to work if the facility is closed.
Also, some federal agencies are funded right now because they operate based on filing fees, but depending on how long the shutdown lasts, they may reach a point where they run out of money, Pinto says. She advises frequently checking each agency’s website to stay informed about their status.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.