The Partial Government Shutdown and its Impact on Private Employers

If one of your News Year’s resolutions was to go on a “news diet”, then maybe you are one of the few lucky ones who is unaware that the partial government shutdown over border wall funding that started on December 21, 2018, continues, and seems poised to do so for the near future.  While you may be thanking your lucky stars that you are not one of furloughed or unpaid federal employees, you may also be wondering how this government shutdown could impact your company.  Aside from the litany of personal effects such as the disaster that has befallen the national parks and the possibility that income tax refund check processing will be delayed, there are some impacts that private employers may feel.  

First, the Equal Employment Opportunity Office (EEOC), which was already operating at less than full capacity, is closed while the shutdown persists.  Individuals who feel they have been discriminated against may still bring their charges; however, investigations will be delayed.  Further, if your company currently has any mediations or court appearances scheduled in an EEOC matter, these will be continued until the budget impasse is over, unless the court or arbitral authority has not allowed a continuance.  If your company owes a position statement to the EEOC, since the online portals are closed, you will not be able to submit it.  It is likely that you will be granted an extension for providing the response based on how long the shutdown lasts.  For now, most of the EEOC’s functions have ground to a halt, and when the government does reopen, will be spending significant time digging out from the backlog of charges, mediations, and litigation. 

Second, the partial government shutdown has also brought the E-verify system to a standstill due to a “lapse in DHS appropriations” according to the USCIS.  What this means is that employers who are required to use the E-verify system to ensure that workers are authorized to work in the United States, can’t.  Employers will not be able to enroll in E-verify, create an E-verify case, view or take action on any case, etc.  In an attempt to ease the burden on employers and employees, the USCIS has suspended the “three-day rule” for creating E-verify cases and the time period for resolving a Tentative Nonconfirmation (TNC) is extended.  USCIS is expected to provide employers with additional clarifying information about these temporary policies once they resume operations.  Employers must still complete the Form I-9 and review documents required to prove an applicant’s authorization to work and identity, and will not be penalized for delays in creating E-verify cases based on the shutdown.   

With our divided government, it is anyone’s guess as to how long this shutdown may continue with the worst impacts being felt by those federal employees who are either furloughed or must work with no prospects for a paycheck in sight.  Stay tuned and contact one of our attorneys at myHRcounsel if you have any questions!

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