By Tim Gould
You may have heard: The federal government’s in shutdown mode. Does this mean employers won’t have to worry about being hounded by EEOC and DOL investigators for awhile?
The answer, as usual: It depends. First off, it’s possible Congress will get its act together within a couple of days. Secondly, if your firm is already deep into a complaint investigation with a federal agency, that process will likely continue — although things may unfold more slowly due to the EEOC, DOL and NLRB staff shortages.
Our friends at Littler Mendelson were kind enough to provide an overview of all three agencies’ shutdown contingency plans. Here’s a rundown of what attorneys Michael J. Lotito and Ilyse Wolens Schuman had to say.
Department of Labor
According to the DOL’s 63-page contingency plan, of the agency’s 16,304 employees, only 2,954 will stay on the job:
Only one of the Office of Labor Management Standards’ (OLMS) 216 employees will remain working during the shutdown
230 of the 2,235 Occupational Safety and Health Administration (OSHA) employees will remain active
Six of the 1,829 Wage and Hour Division (WHD) employees will continue working
none of the Office of Federal Contract Compliance Programs (OFCCP) employees will remain
28 of the 1,107 Employment and Training Administration (ETA) personnel won’t be furloughed, and
46 of the 986 members of the Employee Benefits Security Administration (EBSA) will stay on the job.
And what will — and won’t — these folks be doing? Lotito and Schuman run it down:
No foreign labor certifications will be processed, and no Trade Adjustment Assistance determinations will be made by the ETA.
The OLMS will suspend all activities, except for “conducting investigations in criminal cases under the Labor Management Reporting and Disclosure Act that have statutory deadlines; carrying out election investigations under the LMRDA where the 60-day statutory limit for filing a complaint cannot be waived or extended; and supervising elections where postponement of the election would cause a violation of labor law or a court-ordered deadline.”
OSHA will suspend all operations except for the functions relating to “emergencies involving the safety of human life or protection of property.” According to the agency, “OSHA employees should be able to respond to safety and health complaints or other information when employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm.”
The WHD will keep enough staff on board to be able to “conduct an 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
Just over 100 of the EEOC’s 2,164 staffers remain on the job, according to the agency’s contingency plan. The EEOC will continue to take in new discrimination charges and federal sector appeals, as well as litigate lawsuits where a continuance hasn’t been granted. The agency will also file motions to seek injunctive relief if doing so is necessary “to protect life or property,” or to “maintain the integrity and viability of EEOC’s information systems; maintain the security of our offices and property; and perform necessary administrative support to carry out those excepted functions.”
Here’s what EEOC’s skeleton crew won’t do during the shutdown, according to Lotito and Schuman:
Answer questions from the public, or respond to correspondence from the public
investigate charges of discrimination
litigate in federal courts if granted an extension of time
conduct federal sector hearings, or rule on federal employees’ appeals of discrimination complaints
conduct outreach and education, or
process Freedom of Information Act requests.
Littler Mendelson Article
Department of Labor Contingency Plan
EEOC Contingency PLan