United States: The Impact Of The Government Shutdown On Federal Agencies

National Labor Relations Board (NLRB)

The shutdown has affected all case handling and public outreach efforts.  Specifically, according to the NLRB's shutdown plan, the NLRB will operate as follows during the shutdown:

  • There will be no electronic filing of any document, including new case petitions and charges.  Extensions of time to file have been automatically granted, except that the time in which to file charges will not be tolled.  However, for purposes of calculating time periods, any day in which the NLRB is closed due to the shutdown will be considered a legal holiday.
  • All elections and pre- and post-election hearings scheduled to be conducted any day from October 1 through October 11, 2013 have been postponed indefinitely.
  • Parties to hearings before an Administrative Law Judge scheduled during the shutdown will be notified that the hearing has been postponed.
  • Regional Directors ordinarily serve a copy of charges on the person against whom the charge is made. However, persons filing a charge during the shutdown are responsible for serving a copy of the charge upon the person against whom the charge is made. The Office of Inspector General hotline, OIGHotline@nlrb.gov, will also be monitored for emergencies.

United States Department of Labor (DOL)

The DOL published its contingency plan which identifies which employees, if any, will remain on the job for each DOL sub-agency and which agency functions will be put on hold.  Only 2,954 of the agency's 16,304 employees will continue working.

Most sub-agencies plan to suspend all operations and furlough all staff during the shutdown:

Occupational Safety & Health Administration (OSHA)

Only 230 of the 2,235 OSHA employees will remain active.  OSHA will not be conducting most of its planned workplace safety inspections for the duration of the federal government shutdown.  OSHA will suspend all operations except for the functions relating to "emergencies involving the safety of human life or protection of property." According to the agency, "OSHA employees should be able to respond to safety and health complaints or other information when employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm."  OSHA advises anyone who needs to report a workplace fatality, hospitalizations, or an imminent danger situation to contact their toll free number immediately: 1-800-321-OSHA (6742); TTY 1-877-889-5627.  OSHA's website is not being regularly monitored. 

Equal Employment Opportunity Commission (EEOC)

The EEOC has issued its contingency plan for the government shut down. In short, the EEOC will make sure that charges are docketed to insure that deadlines for filing charges do not pass simply because of the shutdown. Specifically, during the shutdown the EEOC will not:

  • Investigate any charges
  • Respond to questions from the public
  • Continue to litigate if relevant courts grant requests for stays
  • Mediate
  • Hold hearings
  • Have any educational panels
  • Respond to FOIA requests

Employers who are involved in litigation with the EEOC should expect that there will be formal requests to stay the litigation.  Employers whose cases may be impacted by a delay, i.e., an anticipated loss of a witness, should take steps to preserve testimony and evidence that may be impacted by a delay. In addition, to the extent that employers are intending to rely on information in the EEOC's files in litigation, employers may wish to seek extensions of discovery to allow for the processing of FOIA requests.

Office of Federal Contract Compliance Programs (OFCCP)

OFCCP staff goes from 726 to 0 during the shutdown.  As long as it lasts, OFCCP will be completely closed and their website is not being regularly updated. 

Office of Labor Management Standards' (OLMS)

Only one of the 216 employees will work during the shutdown.  The OLMS website is currently not being updated.  The system for electronic submission of Labor Organization Annual Report Forms LM-2, LM-3, LM-4 and Labor Organization Officer and Employee Report LM-30, is not operational during the period of government shutdown.  The OLMS is exercising its discretion to not take enforcement action with regard to any resulting late report filing.

Wage and Hour Division (WHD)

Six of the 1,829 employees will continue working.  The WHD will only investigate "incidents involving serious injury or death of a minor while employed, or any transportation accident or housing safety violation involving the serious injury or death of a farm worker."

Employment and Training Administration (ETA) 

Twenty-eight of the 1,107 personnel will not be furloughed; the ETA will not process foreign labor certifications during the shutdown.

Employee Benefits Security Administration (EBSA)

Forty-six of the 986 members of the EBSA will stay on the job.  The EBSA advises individuals to call 202-693-8630 if they are covered by an employer sponsored group health plan and need assistance with an urgent medical situation which poses an imminent threat to human life or have knowledge of criminal activity that may result in the loss of their retirement, disability or health benefits.

Immigration

  • United States Customs and Information Services (USCIS): All USCIS Offices Worldwide remain open.  Applicants should report to scheduled interviews and appointments.  Embassies abroad will also continue to operate as usual. The E-Verify program will be unavailable during the shutdown, including all Customer Support and related Services. This means that Employers are unable to: enroll in E-Verify, verify employment eligibility, view or take action on any case, add, delete or edit any user ID, reset passwords, edit company information, terminate an account, run reports, or view essential resources. Additionally, employees will be unable to resolve Tentative Nonconfirmations (TNCs) or perform Self Checks.
  • Customs and Border Patrol (CBP): All Ports of Entry are open. CBP, The Border Patrol and the Office of Air and Marine are all continuing with operations.  All global entry enrollment centers are open and interviews are continuing. All Trusted Traveler programs continue to function as usual. The Admissibility Review Office (ARO) is open and continues to function. The CBP website will not be maintained during the lapse in appropriations.
  • Department of State (DOS): The Department will continue as many normal operations as possible. Operating status and available funding will be monitored continuously and closely, and planning for a lapse in appropriations will continue.  Most passport agencies and consular operations will remain open to the extent possible, although some activities might be interrupted.  (For instance, "if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported.")  Applicants are encouraged to contact the agency where they have filed or intend to file an application to determine the impact on that specific application.
  • Department of Homeland Security (DHS): DHS' website will not be actively managed during the shutdown.
  • Immigration and Customs Enforcement (ICE): Detention and enforcement operations will continue to function.
  • Office of Foreign Labor Certification (OFLC) will not conduct, accept or process any applications such as Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.  Additionally, OFLC's web site, including the iCERT Visa Portal System and the PERM system, are unavailable during the shutdown.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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