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01/18/2018
What A Government Shutdown Would Mean For Employers
Source: Fisher Phillips' Legal Alert, January 18, 2018
If Congress cannot approve a budget by this Friday at midnight, the federal government will shut down. What will this mean for employers across the country? A look back at the most recent government shutdown will provide lessons on what you can expect.
A Brief History Of Shutdowns
There have been 12 federal government shutdowns since 1981, when the Attorney General first interpreted budgetary law to permit such actions. Most have been brief: the first 10 were under five days in length, and four of those lasted just one day. But the 1995-96 shutdown endured for 21 days, and in October 2013—the last such event—in our nation’s history, the government hung a “Sorry, We’re Closed” sign on its front door for 16 days. It’s this shutdown that we can look to in order to best predict what will happen during this 2018 go-round.
What If A Shutdown Is Averted At The Last Minute?
Congressional leaders are negotiating to try to avoid a shutdown, and perhaps may even implement temporary measures to postpone a possible closure (as has been the case several times in the past few years). However, even if a shutdown is completely dodged or provisionally delayed, the threat of a stoppage is already impacting federal services.
All federal agencies are currently dedicating their resources to preparing for a possible shutdown, which means that jobs that should be getting their full attention are getting something less or even completely shelved for the time being. You can expect delays in working with any federal agency on any matter right now, so plan accordingly.
What Will Be Shut Down?
If no solution can be found and the shutdown proceeds, you will see most federal services completely halted during the shutdown. Only those workers whose services are deemed “essential” to the operation of our country—air traffic controllers, FBI agents, TSA personnel, military, etc.—will be on the job, but the vast majority of federal workers will be sitting at home until a budget is agreed upon.
Because budget battles frequently result in temporary funding bills, it is difficult to determine exactly what services will be suspended. You can, however, look to past history to determine what to expect.
Employment Discrimination Law
The Equal Employment Opportunity Commission (EEOC) is the primary agency charged with the enforcement of federal discrimination laws. Employees often turn to the EEOC as their first option when they believe they have suffered a workplace wrong. During the 2013 shutdown, individuals were counseled to continue to file charges during the agency’s closure in order to ensure that statutes of limitation were not blown. The EEOC received over 3,100 charges of discrimination during that time period, but no investigations could start. It led to a backlog that took over a month to work through.
Employers who had questions about pending or closed charges were unable to receive information during this blackout period. All mediations and hearings were cancelled, and any litigation directly involving the EEOC as a party was suspended unless the relevant court did not grant a requested continuance. Expect the same if a 2018 shutdown occurs.
Labor Relations
The National Labor Relations Board (NLRB), the agency which governs union-employer relations and union organizing drives, was decimated by the 2013 shutdown. Its contingency plan called for all but 11 of its 1,611 employees to be sent home for the duration of the impasse. It stopped handling all of its cases, which impacted union elections, unfair labor practice investigations, and the issuance of case decisions.
During this last shutdown, the Board handled due dates for filings by placing the cases in a state of temporary suspended animation. Any party that needed to file a document with the Board during this blackout period was automatically granted an extension of time equal to the number of days the shutdown lasted, and any due dates created prior to the shutdown were “tolled” by the same number of days even if the due date fell outside the dates of the closure. We would expect a similar measure to be put into place before the last NLRB employee turns off the lights and locks the door.
As expected, a backlog of union petitions developed in 2013, as the NLRB could not timely process them. Employers who receive petitions during a 2018 shutdown will likely be given a head-start to develop a response to the situation without an immediate pressing deadline looming, although we anticipate the Board will work hard to ramp back up to speed once the shutdown ends. Don’t postpone action on the petition even if no election date is yet on the calendar.
The “quickie election” rule did not exist in 2013, so a 2018 shutdown will place employers facing election petitions over the next several weeks into unchartered territory. It will be interesting to see if the Board attempts to require the compressed time periods imposed by the new rule despite the complications caused by the shutdown and its aftermath.
As with other agencies, we would expect any NLRB hearings scheduled during the shutdown period to be postponed for some time. Just as air traffic gets backed up during a storm, there will be a considerable backlog to work through, and it would not be surprising for some hearings to be delayed by a matter of weeks once the government gets back on its feet.
Wage And Hour Compliance
The Department of Labor’s Wage and Hour Division (WHD) was essentially stopped in its tracks during the last government shutdown. In a typical week, WHD concludes more than 600 investigations and compliance actions to enforce minimum wage, overtime, child labor safeguards, and other workplace protections. During the October 2013 impasse, it opened up only one new investigation, and placed over 6,000 ongoing investigations on hold.
We expect that a 2018 shutdown could look very similar in nature. Prepare for wage and hour investigations to be put on ice for the duration of the shutdown, and most pending compliance actions could be similarly halted. However, don’t count on automatic extensions (as the personnel working on any ongoing matter may be deemed “essential” and may decide to carry on with your matter), and even if you receive an extension, don’t count on it being the same period in length as any shutdown. You should use your time wisely during any break in the action. Finally, don’t expect a reprieve from battle if you are in the midst of a WHD investigation or litigation with the Solicitor’s Office.
