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Federal Government Shutdown Implications for HR
For the first time in 17 years, the United States government is closed today as the House of Representatives, the Senate and the White House were unable to reach an agreement to fund the federal government for the 2014 fiscal year, which began today, October 1. The operating status of the government remains unpredictable, but it appears that there are no prospects in the near term for an end to the budget standoff. As a result, the federal government could be shut down for several days, perhaps even weeks until a budget bill is approved.
Companies that do business with the government may find a temporary cessation of the need for their products or services. If this occurs, the private-sector employer may need to furlough some employees for some period of time. If you fall into this category, you will need to keep in mind wage and hour rules or you may find yourself the defendant in a wage and hour claim. For a summary of the primary wage and hour rules, READ comments posted by Jonathan A. Segal, SHRM member and a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group.
All but “essential” federal employees are furloughed by their agencies, with many if not most federal agencies releasing or posting information on their shutdown contingency plans on their websites. While the situation is very fluid, below is a short synopsis of information pulled from agency websites and other sources of the federal agencies that enforce federal HR laws and regulations. Generally, keep in mind that employers are still obligated to meet statutory deadlines and compliance requirements of the underlying statutes.
NATIONAL LABOR RELATIONS BOARD (NLRB)
Pursuant to the NLRB contingency plan, the Office of Inspector General hotline, which is necessary for safety of life and protection of property or to protect federal legal actions already taken, will continue to be operational.
Services and programs that will NOT be available during the government shutdown include and are not limited to: Representation Case Petition Docketing; Investigations; Hearings and Elections; Unfair Labor Practice Charge Docketing; Complaints; Settlements; District, Circuit and Supreme Court Litigation – injunctions, enforcement, contempt, intervening; Administrative Law Judge and Board Decisions; Resolution of Workplace Disputes – collective bargaining, protected concerted activities, representational issues; Resolution of Employee/Employer Disputes with Union; Remedial Action – Backpay, Reinstatement, Reimbursement of Union Dues and Fees, Bargaining Orders; Information Officer Services; Outreach and Public Affairs Services, including public website; and Typical Inspector General Services.
Read the NLRB contingency plan HERE.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Pursuant to the plan, only activities involving the safety of human life or the protection of property will continue. Specifically, 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 EEOC’s information systems; maintain the security of EEOC offices and property; and perform necessary administrative support to carry out those excepted functions. The bulk of these activities would be handled by staff in EEOC field offices.
EEOC activities that will NOT occur during the shutdown: Staff will not be available to answer questions from the public or to respond to correspondence from the public; they will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, but these charges will not be investigated; insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts; mediations will be cancelled; federal-sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided; outreach and education events will be cancelled, and no FOIA requests will be processed.
Read the EEOC contingency plan HERE.
DEPARTMENT OF HOMELAND SECURITY (DHS)
The vast majority of Department of Homeland Security employees will continue to work under a shutdown because their functions “must be maintained under all circumstances to ensure the safety and security of the nation and its citizens,” or because their jobs are not funded by congressional appropriations, according to the agency’s 2013 contingency plan.
Read the DHS contingency plan HERE.
E-Verify will NOT be available during the government shutdown. While E-Verify is unavailable, employers will not be able to access their E-Verify account. As a result, employerswill be unable to: enroll any company in E-Verify; verify employment eligibility; view or take action on any case; add, delete or edit any user ID; reset passwords; edit their company information; terminate an account; run reports; and view ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.
In addition, E-Verify Customer Support and related services are closed. As a result: Employees will be unable to resolve Tentative Nonconfirmations (TNCs), and telephone and e-mail support will be unavailable. Individuals may send e-mails, but a response will not be provided until the government reopens; E-Verify webinars and training sessions are cancelled, and E-Verify Self Check will not be available.
To minimize the burden on both employers and employees, the following policies have been implemented related to E-Verify:
- The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. DHS will provide additional guidance once they reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
- The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. DHS will provide additional time once it reopens.
- For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).
DEPARTMENT OF LABOR (DOL)
During the shutdown, a majority of the Department of Labor’s employees will be furloughed. Therefore many programs and services will be impacted, specifically those involving the Bureau of Labor Statistics and the Employment and Training Administration.
Read the DOL contingency plan HERE.
DEPARTMENT OF THE TREASURY
The Treasury Department will continue disbursements of Social Security funds, automated revenue collections and the work of daily cash management for the government, in addition to paying interest on the federal debt. But the department’s largest component, the Internal Revenue Service (IRS), will cease some of its key functions such as audits, examinations of returns, processing of paper returns and call-center operations for taxpayers with questions.
Read the IRS contingency plan HERE.
DEPARTMENT OF STATE
The State Department, which receives funding in the annual State, Foreign Operations and Related Programs Appropriations Act, will be able to operate for a limited time. Activities carried out by the Bureau of Consular Affairs, both domestically and abroad, are fee-funded and will continue. The department will continue passport operations and visa issuance overseas.
Some passport offices are located in federal buildings that may be forced to shut down during a lapse in appropriations because of a lack of building support services. Embassies and consulates overseas will continue to provide American citizen services.
DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)
While the agency will be sending home more than half of its workers, the lack of funding will not affect various offices equally. For instance, the department said “grant-making and employee-intensive agencies” such as the Administration for Children and Families and the Substance Abuse and Mental Health Services Administration will have to furlough “the vast majority of their staff.”
Many parts of the agency will linger in a state between full functioning and total shutdown. The Centers for Disease Control and Prevention will continue “minimal support to protect the health and well-being of U.S. citizens,” but it will have a “significantly reduced capacity” to respond to outbreaks and will be unable to support its annual flu program.
Read the HHS contingency plan HERE.
SHRM’s Government Affairs Department will continue to monitor developments surrounding the government shutdown and will continue to provide updates to membership.