Since Dec. 21 the federal government has been in what is called a partial shutdown. Even private sector employers who are not government contractors need to deal with the fallout.
This time is not like previous shutdowns. A September 2018 “minibus” funding bill signed by Trump fully funds some federal agencies through Oct. 1, 2019. For that reason, the Department of Labor and National Labor Relations Board, among others, continued operating during this shutdown.
This includes wage and hour compliance handled by DOL, and workplace safety matters handled by OSHA, an agency of DOL. Federal contract compliance, handled by the Office of Federal Contract Compliance Programs, continues as well.
In addition, labor relations matters that come under the mandate of the NLRB – including union elections, unfair labor practice charges, litigation and similar events – will continue as usual, points out the law firm of Fisher Phillips.
The Feral Motor Carrier Safety Administration also continues its duties. Although 18,000 of about 20,000 total U.S. Department of Transportation employees were furloughed, FMCSA is funded through highway fuel taxes and much of its work is outsourced to state law enforcement agencies.
One federal agency not spared from the ravages of shutdown is the Equal Employment Opportunity Commission. Its workforce of over 2,000 employees was scaled back to just 103 staffers, some working only on a part-time basis. Because of this, only limited EEOC services are available.
However, EEOC says individuals who believe they were subjected to discrimination in the workplace should continue to file charges to ensure that statutes of limitation are not blown.
The Department of Homeland Security and its sub-agencies generally stay open during a shutdown.
This includes U.S. Citizenship and Immigration Services, which adjudicates the vast majority of immigration processes. USCIS requires petitions and applications be accompanied by filing fees, which means their processing continues.
Because the State Department is not fully funded, consulates and embassies are unable to issue visas that allow foreign nationals to travel into the U.S.
Employers will not be able to access their E-Verify accounts to enroll, create an E-Verify case; view or take action on any case; add, delete or edit user accounts; reset passwords; edit company information; terminate accounts and run reports.
In addition, employees will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs).
To minimize the burden on both employers and employees, USCIS implemented the following:
- The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
- The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
- USCIS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
- Employers may not take adverse action against an employee because the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
- Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
