Federal Agencies Make Adjustments as Government Shutdown Drags On

By Michael J. Lotito and Ilyse Wolens Schuman

Now that all indications point to a more prolonged government shutdown than originally anticipated, federal agencies have issued additional information about their limited functions during this period.

As previously discussed, the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) released their contingency plans ahead of the government closing on Monday Oct. 1. Given that a solution to the budgetary wrangling does not appear imminent, agencies have supplemented their initial plans as follows:

Department of Labor

Office of Administrative Law Judges

The DOL’s Office of Administrative Law Judges (OALJ) has issued a general order on the status of hearings and case-related deadlines during the federal shutdown. In general, the OALJ will be unable to perform any case-related activities during this period. In addition, “hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.”

The Order further explains:

Any deadlines occurring during the period of a government shutdown which involve case-related activities, such as responses to discovery requests, scheduled depositions, or responses to orders, will be suspended. Due dates for these events must therefore be recalculated by the parties based on the number of days of any government shutdown, e.g., if the government experiences a lapse in funding for 5 days, responses to discovery requests, orders and the like will be due five days later than the original due date. Any disputes regarding due dates should be resolved by the parties themselves and should not require the intervention of the presiding administrative law judge. If disputes remain unresolved thereafter, any motions regarding such matters must attest to the fact that the parties have engaged in a good faith effort to resolve the dispute but were unable to do so.”

Employment and Training Administration

The DOL’s Employment and Training Administration (ETA) issued a notice explaining how the shutdown will affect the ETA’s funded programs and activities. With respect to unemployment compensation, the ETA notes that state agencies are responsible for paying unemployment compensation, and will therefore continue to do so for current recipients and new claimants. Funding for Emergency Unemployment Compensation (EUC) will continue as well.

National Labor Relations Board

Because the NLRB’s webpage is now unavailable, electronic filing is impossible. Therefore, as explained in a notice published in the Federal Register, the Board is granting an extension of time to file or serve any document “for which the grant of an extension is permitted by law.” Accordingly, the filing deadlines will be extended a day for each day or portion thereof the shutdown continues and NLRB offices are closed. The NLRB emphasizes, however, that the six-month statute of limitations remains in effect for the filing of unfair labor practice charges.

The Board will, however, consider the phrase “Saturday, Sunday, or a legal holiday” in its rules pertaining to filing and service “to encompass any day on which the Agency’s offices are closed for all or any portion of the day due to lack of appropriated funds.” The Board further advises that:

Persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operations is uncertain. Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.”

Moreover, the Board explains that while regional directors “ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy,” it is not the Board’s responsibility to do so, and this courtesy will not likely be carried out during the shutdown.

Unfair Labor Practice hearings

The NLRB is in the process of canceling Unfair Labor Practice hearings before administrative law judges that were scheduled for this week.If the shutdown is still in effect by the end of this week, all hearings scheduled for next week will be postponed indefinitely. If no appropriations bill or other measure authoring the agency to operate has been enacted by the close of business on Monday, Oct. 7, all hearings before Administrative Law Judges for the week of Oct. 14 will be postponed indefinitely.

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Representation Elections and Hearings and Notice of Election

The NLRB announced that all elections and pre and post-election hearings scheduled any day from Oct. 1, through Oct. 11, 2013 have been postponed indefinitely. Going forward, if no appropriations bill or authorization measure is in place by the close of business on a Tuesday, all election or pre or post-election hearing scheduled to be conducted the following week will be postponed indefinitely.

The Board cautions that in each case until the election is postponed, the employer is responsible to post the Notice of Election “for 3 full working days prior to the day of the election and failure to do so shall be grounds for setting aside the election.” The Federal Register notice provides additional details about such notice.

Department of Homeland Security

The Department of Homeland Security (DHS) announced that E-Verify will be unavailable during the federal government shutdown, meaning that employers will be unable to access their E-Verify accounts, and E-Verify customer support and related services will be closed. As a result, employers will be unable to run new hires or take any other action in E-Verify so long as the government shutdown continues.

Other immigration-related implications of the shutdown can be found here.

Meanwhile, Sen. Ben Cardin, D-MD, introduced a bill (S. 1567) that would provide for the compensation for the estimated 800,000 furloughed federal employees.

A list of all federal agency contingency plans can be found here.

This was originally published on Littler Mendelson’s D.C. Employment Law Update blog. © 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Michael J. Lotito is the co-chair of Littler Mendelson's Workplace Policy Institute that provides advocacy services for clients, associations, and policy leaders on all workplace concerns, and a shareholder in the San Francisco office of the labor law firm. Contact him at mlotito@littler.com. lyse Wolens Schuman is a shareholder in Littler's Washington, D.C. office, and a member of the firm's Government Affairs practice. She works with employers in multiple industries, including trade associations, and leads the firm's Legislative and Regulatory practice. Contact her at ischuman@littler.com.

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