The Longest Government Shutdown…Ever!

By Sheerin Mehdian

Lasting five weeks, from December 22, 2018 to January 25, 2019, the United States endured the longest government shutdown in its history. After Congress failed to reach a deal to fund certain departments and agencies of the government, and President Trump declared that he would not sign a bill that did not include funding for a border wall between the United States and Mexico, many sectors of the U.S. government halted operations, affecting government employees and leaving employers to understand how to react.

The shutdown was “partial” because it only affected federal agencies that did not have previous spending plans: the Department of the Treasury, Department of Agriculture, Homeland Security Department, Department of the Interior, Department of State, Department of Housing and Urban Development, Department of Transportation, Department of Commerce, the Department of Justice, and the Equal Employment Opportunity Commission (EEOC). Other agencies that are funded through Fall 2019, including the Department of Labor (DOL), National Labor Relations Board (NLRB), and the Department of Health and Human Services (HHS), were not impacted.

On January 25, 2019, President Trump signed a short-term spending bill—excluding border wall funding—that temporality provided funding and reopened affected government sectors until February 15, 2019. With the possibility that the executive and legislative branches may reach another impasse in funding, employers should be familiar with how a shutdown may affect them.

EEOC: The Equally Affected Employment Agency

A government agency that by name affects employers, the EEOC ceased most of its operations due to the shutdown. The EEOC’s contingency plan, released on December 3, 2018, outlined that only activities related to the safety of human life and the protection of property continue during a shutdown:

• Individuals can submit charges;
• Litigation will continue for matters that are not continued;
• Security of the EEOC’s office, property, and information systems will be maintained; and
• The Commission will continue to examine new charges to determine if emergency judicial action is needed.

During a government shutdown, however, the EEOC activities that will not occur include:

• Staff will not answer questions or respond to correspondence from the public;
• Though claimants may file charges, these charges will not be investigated;
• The EEOC will not litigate in the federal courts for cases for which the courts grant extensions;
• Mediations and 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
• FOIA requests will not be processed.

For the time being, the EEOC has resumed operations, though there may be some delay in courts lifting stays on pending EEOC litigation, the agency reviewing the backlog of charges, and the EEOC communicating with parties regarding the status of mediation. Employers should note that employees must still submit charges to the EEOC, even during a shutdown, to preserve their claims. In case the government takes another hiatus, these considerations are helpful to understand the extent of access employees and employers will have to the EEOC.

Immigration: “EEEK!”-Verify

During a government shutdown, the United States Citizenship and Immigration Services (USCIS) remains open as part of the Department of Homeland Security, and United States Customs and Enforcement (ICE) activities typically continue, as normal.

Important for employers to note, however, is the delays in visa processing that ensue with government shutdowns. E-Verify, the online system by which employers verify the working eligibility of new hires, ceases operation during the shutdown. Employers that attempted to verify employees during a shutdown likely received the message: “NOTICE: Due to the lapse in federal funding, this website will not be actively managed. E-Verify and E-Verify services are unavailable” from the E-Verify website. Without E-Verify, employers cannot access their accounts to edit or terminate their accounts or company information, run reports, reset passwords, or take action in any cases. Also, E-Verify Customer Support also closes during a shutdown leaving users without email and telephone support, without access to myE-Verify, employees cannot resolve Tentative Non-confirmations (TNCs), and training sessions are suspended. USCIS issued guidance that employers’ obligation to verify employees within three days of the employment through E-Verify is suspended while E-Verify is unavailable, and employees have extended time to resolve TNCs.

Practically, during a shutdown, employers should continue to hire qualified new employees as they wish and prepare Form I-9s, Employment Eligibility Verification, for all new hires by the third business day after an employee commences work. Though, during a government shutdown, there is generally a lapse in I-9 support and processing. Once a government shutdown ends, employers should process the E-Verify inquiries for employees who may have been hired during the shutdown period. If the employer is questioned at that time about submitting employees outside of the three-day window, the employer should type in “Federal Government Shutdown” in the “other” section of the down-down menu. Like the I-9 support, even with the government resuming operation, E-Verify support may be delayed.

As of January 28, 2019, E-Verify has resumed; however, users might have longer than usual processing times.

Government Contractors: The Fine Print for Agency Friends

As with the agency’s employees, federal contractors doing business with affected government agencies can also be impacted by government shutdowns.

The DOL, including the Office of Federal Contract Compliance Programs (OFCCP), was funded through earlier spending bills; therefore, it did not stop functions due to the shutdown. Additionally, the DOL’s Wage and Hour Division, and thus DOL enforcement, was unaffected. However, federal contactors should be aware that they may have to furlough their service employees who work at federal facilities in jobs that are unneeded due to a facility closing because of the shutdown. Also, federal contractors who bear H-1B visas, non-immigrant visas that allow U.S. employers to employ workers in certain specialty occupations, must pay employees their regular wages, even if their operations are halted during a shutdown. Federal contractors with H-1B visas may be required to use their accrued paid time off during the shutdown first; then, if that time is depleted before the cessation of the shutdown, the contractor must resume paying the visa holder’s regular wages.

Conclusion

The partial government shutdown has concluded for the time being. However, the political stalemate in Washington and the fact that the spending bill is temporary render it possible that the country will slip into another government closure. If that times comes, lessons and guidance from shutdowns past will be useful tools for employers.