Saturday night the federal government went into shut down (or partial shutdown – depending on whether the agency had existing funds to tap into) for just over three days. The shutdown was due to the Congressional impasse on the budget bill and immigration. On Monday, Congress and the President ended the shutdown and extended spending authorization through February 8th. Given this shutdown was started on a weekend, the impact of the shutdown was relatively minor.
As federal government shutdowns go, this one was relatively short. In its January 18th article, the Fisher Phillips newsletter provided some history into how a government shutdown has impacted employers in the past. They note that since 1981 there have been 12 federal shutdowns. 10 of the shutdowns were under five days in length, and the longest one, back in 1995-96, lasted 21 days.
So what federal agencies that oversee employers are affected during a shutdown? Agencies that provide essential services such as the military, the FBI, and TSA continued operations. However, agencies such as the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), DOL Wage and Hour Division, certain immigration related services of the US Citizenship and Immigration Services (USCIS), and the Occupational Safety and Health Administration (OSHA) implemented shutdown plans.
The Fisher Phillips article, What A Government Shutdown Would Mean For Employers, noted that during the 16-day 2013 shutdown, the aforementioned agencies did not intake charges. They did suspend the tolling of time against the statutory or regulatory deadlines. Additionally, there was not a source to go to for questions and answers. Filings on cases could not be made during the shutdown, and a backlog occurred in the agencies that took weeks or months to catch up on. Investigations were, of course, suspended during the shutdown period. However, employers that were in the middle of enforcement actions did not necessarily get extensions if the personnel working on the issue were deemed “essential” and continued to work during the shutdown.
As in the past, processing of work visas would be impacted, labor certification applications for green cards would not be processed, and visas allowing foreign nationals to travel to the U.S. would be delayed. E-verify, the service that contractors use to verify employee identities may be shut down.
OSHA did suspend most of its inspections in 2013 and would most likely suspend its workplace inspections during this shutdown as well. One area of exception may be inspections such as mines where human life is at risk. In Michigan though, because it has a State safety administration plan, some work will continue. Why just some work? Because the state program operations are funded by federal OSHA, and this funding would presumably stop during the shutdown. Employer consultations with federal OSHA would be unavailable during a shutdown. One media report during the short shutdown stated MIOSHA has a two- to three-month funding before it would be impacted by a federal shutdown.
Another area where major employer impact would be felt are federal contractors doing work for the government. If the work is deemed non-essential, the contract could be suspended. It is recommended federal contractors consult with their contracting official and watch for a stop-work order. The Office of Federal Contract Compliance Programs (OFCCP) that oversees affirmative action employment would be shut down entirely.
Lastly, if a business is tied even remotely to a federal government service, delays in licensing and permitting as well as stalled projects could adversely impact a business. The Fisher Phillips article noted that the 2013 shutdown may have resulted in 120,000 fewer jobs being created on a national scale because of the 16-day shutdown.
The country now must wait a few more weeks to see if Congress and the President can make a deal or if we’ll enter into a lengthier shutdown. Budget and immigration are issues both sides say they want to solve but are willing to shut down the greatest country in the world to do so.
Sources: What A Government Shutdown Would Mean For Employers Fisher Phillips 1/18/2018. U.S. DOL Memo on Plan for Continuation of Certain Limited Departmental and Solicitor Activities During a Lapse in Appropriations