Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: On Monday, January 22, 2018, Congress agreed to a three-week spending bill that ended the government shutdown.
Unless Congress can finalize a budget by midnight tonight (January 19), the federal government will be forced to shut down due to a lack of appropriations.
On Thursday evening, the House of Representatives passed a continuing resolution (CR) that would fund government operations for another month, through February 16, 2018. The fate of this proposal is highly uncertain in the Senate, however. Republicans simply may not be able muster the 60 votes necessary to adopt the CR. Several Republican Senators have expressed opposition, along with nearly every Democrat.
Negotiations are ongoing but, barring a last-minute deal, a shutdown would begin Saturday, January 20, 2018. In preparation for this increasingly likely possibility, federal agencies have begun issuing updated contingency plans.1 These plans explain which operations would continue and which would cease during any hiatus, however long it might last. (The last shutdown, in 2013, lasted 16 days.)
On the whole, most non-essential tasks carried out by the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) would grind to a halt. Work deemed “essential” would continue, such as air traffic control and certain military operations, although employees would not necessarily be paid in the short term. This article summarizes key points from the most recent contingency plans rolled out by the agencies most likely to affect employers.
Department of Labor
In its 66-page contingency plan, the DOL indicates that most of its internal agencies would engage in some activities, though pared down. Highlights are as follows:
- Of the DOL’s 15,383 employees, only 2,582 would remain on the job. These workers are primarily found in the Mine Safety and Health Administration (449), Office of the Inspector General (160), Occupational Safety and Health Administration (490), and Office of Workers Compensation Programs (1,222). Six workers would remain to staff the Wage and Hour Division (WHD), along with two employees at the Bureau of Labor Statistics.
- All in all, nine of the DOL’s 26 sub-agencies would suspend operations.
- Notably, no employees would be active at the Office of Federal Contract Compliance Programs (OFCCP), which normally maintains 569 workers. By way of further example, all employees would be furloughed at the Office of Administrative Law Judges, the Office of Labor-Management Standards (OLMS), the Veterans Employment and Training Administration, and the Women’s Bureau, which collectively employ 630 individuals.
- The Employment and Training Administration (ETA) reports that no foreign labor certifications would be processed during any shutdown, no grantee inquiries would be answered, and no Trade Adjustment Assistance would be addressed. On the other hand, Job Corps personnel would work to ensure student safety, and essential unemployment insurance functions would continue.
- Per its most recent memo, OLMS would suspend operations except for investigators that are: (1) subpoenaed to testify before a federal or state court; (2) performing criminal investigations that must continue in light of the statute of limitations; (3) performing election investigations; or (4) performing activities associated with a supervised election where postponement would result in violation of a law or court order.
- Consistent with the Antideficiency Act,2 which affects all agencies, OSHA would fulfill those duties related to “emergencies involving the safety of human life or protection of property.” Such enforcement activity would include: (1) inspection of imminent danger situations; (2) investigation of workplace fatalities and catastrophes; (3) investigations of safety and health complaints indicating that employees have been exposed to hazardous, dangerous conditions; (4) follow-up inspections for locations with high gravity serious violations and no abatement; and (5) enforcement activities on open cases needed to satisfy the agency’s six-month deadlines.
- The non-furloughed workers at WHD—including the Administrator and five Regional Administrators—would remain available “to conduct immediate investigation of any incidents involving serious injury or death of a minor while employed or any transportation accident or any housing safety violation involving serious injury or death of a farm worker.”
Equal Employment Opportunity Commission
The EEOC does not appear to have updated its contingency plan in light of the current shutdown threat. Nonetheless, like other agencies, the EEOC stresses that “only activities involving the safety of human life and protection of property would continue.” Such activities include:
- Preserving the rights of claimants by docketing new charges;
- Continuing litigation where not stayed;
- Examining new charges to see if prompt judicial action is needed to protect life or property and, if so, seeking preliminary relief;
- Maintaining information systems, office security, and necessary administrative support.
The EEOC would not engage in the following functions, however:
- Answering questions from the public or responding to correspondence;
- Investigating charges of discrimination;
- Litigating in federal court, if extensions of time are permitted;
- Conducting mediations;
- Conducting federal sector hearings or ruling on federal appeals;
- Conducting outreach and education; and
- Processing FOIA requests.
The EEOC intends to retain a small percentage of its staff through any shutdown, with many personnel working part-time or on call.
National Labor Relations Board
Under the NLRB’s plan, dated January 18, 2018, only nine of the agency’s 1,435 employees would report for work should there be a lapse in appropriations. Given this drastic reduction in staff, the following services would be affected during a shutdown:
- Representation case petition docketing, investigations, hearings and elections;
- Unfair labor practice charge docketing, investigations, hearings, complaints, and settlements;
- Federal court litigation, including injunction, enforcement, contempt, or intervention proceedings;
- Administrative law judge and Board rulings;
- Resolution of workplace disputes, including collective bargaining, concerted activities, and representational issues;
- Resolution of employee or employer disputes with unions;
- Remedial action, including backpay, reinstatement, reimbursement of union dues and fees, and bargaining orders;
- Information officer services, along with outreach and public affairs services, including the public website; and
- Typical Inspector General services.
Department of Homeland Security
The Department of Homeland Security (DHS), meanwhile, anticipates far less significant impacts than the employment-related agencies, due to its different core mission. In its plan, DHS states that roughly 87% of its personnel are exempt from furlough. Here are some key details from the DHS contingency memo:
- Approximately 90% of Customs and Border Protection (CBP) staff would continue to work, as they represent presidential appointees, law enforcement officers, and other employees whose work is necessary to protect life and property. Along the same lines, about 92% of Transportation Security Administration (TSA) employees would report for duty.
- Of the 19,766 employees working at Immigration and Customs Enforcement (ICE), 15,411 would likely be retained in the event of a shutdown.
- Citizenship and Immigration Services (USCIS) would see a very small reduction in the workforce during any hiatus, representing about 2% of staff.
- Non-exempt activities within DHS, which would be curtailed, would include: strategic planning, research and development activities, most policy and programmatic functions, auditing, public affairs functions, and training and development.
- According to the DHS plan, all fee-funded activities would continue—such as those performed by USCIS—because these programs are not funded through annual appropriations.
- In addition to activities not subject to annual appropriations, DHS operations would not be disrupted: (1) if authorized by law to continue without funding (i.e., active duty military personnel); (2) if necessary to the discharge of the president’s duties (i.e., employees detailed to the White House or performing essential foreign relations work); or (3) if needed to protect human life or property (i.e., law enforcement).
These federal agencies, of course, have a broad reach. They interact in numerous ways with the private sector on a daily basis. As these agencies brace for the potential shutdown, private employers must stay tuned as well. We will to continue to monitor this situation and will post any noteworthy agency updates should the government shut down.
1 White House, Office of Management and Budget, Agency Contingency Plans (linking to all agency plans and updating as revised plans become available). Numerous agencies issued updated their plans in December 2017, although the potential shutdown last month was ultimately averted.
2 See 31 U.S.C. § 1342 (prohibiting federal officials from accepting voluntary services or spending funds “except for emergencies involving the safety of human life or the protection of property,” a situation that expressly does not include the “ongoing, regular functions of government”); see also U.S. Government Accountability Office, Antideficiency Act.