Government agencies are integral to the enforcement of federal labor and employment laws and will be dramatically impacted by a government shutdown. Below is a synopsis of the impact on the main government agencies responsible for enforcing federal labor and employment laws—the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Labor (DOL); and the National Labor Relations Board (NLRB).
Impact of a shutdown on the EEOC
If the government shuts down, the EEOC will furlough 95% of its employees. There will be no staff available to investigate EEOC charges; mediations will be cancelled; and FOIA requests will not be processed.
According to the EEOC’s contingency plan, however, the EEOC will continue to litigate cases where an extension has not been granted (at least until the federal courts run out of funds and cases are suspended). In addition, the EEOC’s public portal will remain open for the filing of charges and field office staff will monitor entries to see if any are nearing the end of the charge filing period or if injunctive relief is required.
Once the government re-opens, the EEOC will be required to process a backlog of charges that accrued as a result of the shutdown. As a result, a notice of right to sue may be the first notice of a charge that an employer receives.
Note, while the EEOC will be impacted by the federal government shutdown, state and local fair employment practices agencies will remain fully operable.
Impact of a shutdown on the DOL
The DOL will furlough over 11,000 employees if the government is shutdown. The Wage and Hour Division will retain only 7 of its 1,538 staff members. The Division will continue to monitor incoming complaints, but all regulatory work will cease as will all enforcement activities not related to the safety of human life or protection of property.
The Occupational Safety and Health Administration (OSHA) will retain 1,180 of its regular staff of 2,106. As a result, all worker protection agency investigations will cease unless they involve responding to or preventing fatalities, catastrophes, or imminent danger. OSHA will not carry out programmed inspections and will largely suspend activities related to whistleblower protections.
In addition, the DOL’s adjudicatory functions will also cease with the Office of Administrative Law Judges (OALJ) not retaining any full time staff members during a shutdown. Similarly, the Office of Federal Contract Compliance Programs (OFCCP) will cease operations completely.
While the DOL has previously stated its much anticipated final rule on independent contractors would be released in October, that is unlikely to occur if there is a government shutdown.
Impact of a shutdown on the NLRB
During the shutdown, the NLRB will retain only 15 of its 1,200 employees. All case handling activities will be discontinued with an immediate impact on unfair labor practice (ULP) charges, representation petitions and elections, issuance of Administrative Law Judge (ALJ) and Board decisions, enforcement of remedial actions, and the resolution of collective bargaining disputes. The NLRB will continue to respond to ULP incidents that might result in irreparable harm to the private sector economy. Retained staff will largely be located at headquarters and not in field offices.
The impact of a government shutdown on the EEOC, DOL, NLRB will be far-reaching. Employers can expect that in the event of a shutdown, the agencies will largely cease their regular operations. Once the shutdown ends, the agencies will face the daunting task of resuming enforcement activities and delays are likely.