I felt like I was watching a New Year’s Eve special last night with all the countdowns to midnight. Unfortunately (or fortunately) there was no Ryan Secrest,no ball dropping, and no confetti. Instead, the count down was for when the government would “officially” shutdown. 

Regardless of who you believe should be blamed (I’ll start with the politicians), there is no dispute that employers and employees will need to be aware of what the government shut down means for their respective interests. Here is an overview of what they can expect:   The U.S. e-Verify program will be shutdown. The e-Verify system allows employers to voluntarily check the legal work status of its employees. For context purposes, more than 21 million requests were filed through the system during FY2012.  Enforcement of Wage and Hour laws. The Department of Labor’s (“DOL”) Wage and Hour Division is responsible for enforcing federal wage and hour laws. While these laws will remain in effect, the DOL will likely suspend operations during the government shutdown.  Unemployment benefits will likely continue. It has been reported by the Department of Labor that the Federal Employment and Training Administration “will continue to provide essential functions, as occurred during the shutdown of 1995.”  Workplace dispute cases would not be resolved until after the shutdown, as the National Labor Relations Board would halt all case handling. Federal Courts will probably be open for the next ten days before shutting down. According to a statement released Thursday t federal courts will remain open for about 10 business days after a shutdown begins and would reassess its situation around Oct. 15, 2013. All proceedings and deadlines would remain as scheduled, and the electronic filing system for documents with courts would remain operational. In case you are worried, Supreme Court Justices, U.S. magistrate judges, and U.S. bankruptcy judges would continue to be paid in the absence of funding. National labor Relations Board will shut down. The NLRB oversees union-organizing elections and under certain circumstances, resolves workplace disputes. But with the shutdown, the NLRB’s case handling will be suspended during the government shutdown. Outreach and public affairs would also cease. Also, all but 11 of the agency’s  1,611 employees would be furloughed. Those 11 would be retained to protect life and property. The Equal Employment Opportunity Commission. According to the EEOC’s website, “only activities involving the safety of human life or the protection of property will continue.” Perhaps more informative is the EEOC’s explanation of what it will not be doing during the shutdown; According to the webiste, the EEOC:  Staff will not be available to answer questions from the public, or to respond to correspondence from the public. While we will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, 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. No FOIA requests will be processed While employers and employees will in large part be negatively impacted to some degree during the government shutdown, we can at least take comfort in the knowledge that our politicians will still get paid. The 27th Amendment to the Constitution, ratified in 1992, holds that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” The amendment protects members from a pay cut. But given the body of work for most of our politicians, I think we all agree we should be talking about a pay raise – probably something politicians on both sides of the political divide can agree on.  This includes preserving 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 our offices and property; and perform necessary administrative support to carry out those excepted functions. 

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Regardless of where you place blame for this shutdown (I’ll start with the politicians), the fact remains that both employers and employees will need to deal with the consequences of this government shutdown. Here is an overview of what they can initially expect:

  1. The U.S. e-Verify program will be shutdown. The e-Verify system allows employers to voluntarily check the legal immigration status of its employees. This program will not be available during the shutdown. Employers need to be aware that they 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.
  2. Enforcement of Wage and Hour laws. The Department of Labor’s (“DOL”) Wage and Hour Division is responsible for enforcing federal wage and hour laws. While these laws will remain in effect, the DOL will suspend operations during the government shutdown. Here is a complete contingency plan put out by the DOL.
  3. Unemployment benefits will continue. It has been reported by NPR that unemployment benefits will still be distributed. 
  4. Federal Courts will operate for approximately 10 days and then a “wait and see” approach. The federal courts will probably be open for the next ten days before shutting down according to a statement from the United States Court’s webpage. All proceedings and deadlines would remain as scheduled, and the electronic filing system for documents with courts would remain operational. In case you are worried, Supreme Court Justices, U.S. magistrate judges, and U.S. bankruptcy judges would continue to be paid in the absence of funding.
  5. National labor Relations Board will mostly shut down. The NLRB oversees union-organizing elections and under certain circumstances, resolves workplace disputes. The NLRB’s case handling will be suspended during the government shutdown. Outreach and public affairs will also cease. In fact, all but 11 of the agency’s 1,611 employees would be furloughed. Those 11 would be retained to protect life and property.
  6. The Equal Employment Opportunity Commission will mostly shut down. According to the EEOC’s website, “only activities involving the safety of human life or the protection of property will continue.” Perhaps more informative is the EEOC’s explanation of what it will not be doing during the shutdown; According to the website:
  • EEOC staff will not be available to answer questions from the public, or to respond to correspondence from the public.
  • While the EEOC will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
  • To the extent that courts grant requests for extensions of time, the EEOC will not litigate such cases in the federal courts.
  • EEOC 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.
  • No FOIA requests will be processed

Not All Doom and Gloom …. for Politicians  

While employers and employees will in large part be negatively impacted to some degree during the government shutdown, we can at least take comfort in the knowledge that our politicians will still get paid. The 27th Amendment to the Constitution, ratified in 1992, holds that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” The amendment protects members from a pay cut.

Given the body of work for most of our politicians, I think we all agree we should be talking about a pay raise – probably something politicians on both sides of the political divide can agree on.

Please contact Jason Shinn directly with any questions about how your employment law matters and services will be affected during the government shutdown or with any other federal or Michigan employment law questions.