Here’s the 411 on the Government Shutdown

Posted by: Gail Cecchettini Whaley, Esq. on Thursday, January 10, 2019 at 12:00:00 am

As the government shutdown continues due to disagreements between Congress and the Trump Administration, several services are impacted and may affect workplace employment-related issues. Read on to see what’s impacted and what’s not.

E-Verify Down

E-Verify and E-Verify services are not available to employers. Employees are also unable to resolve E-Verify Tentative Non-confirmations (TNCs). However, I-9 Form requirements must be met during the shutdown, according to the Department of Homeland Security.

To help minimize the impact of the currently unavailable services, several E-Verify policies have been put into place:

  • The "three-day rule" for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • DHS will provide additional guidance on the "three-day rule" and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because an E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Form I-9 Requirements Remain

The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements, DHS said. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.

Note that consulates and embassies under the State Department are closed which will affect the issuance and processing of visas.

EEOC Closed

The federal Equal Employment Opportunity Commission (EEOC) has closed during the shutdown, according to the agency. Employees who are trying to file claims will not have their time limits extended because of the shutdown and must still mail any claims.

However, the EEOC will not investigate any claims during the shutdown. If there is a pending charge against your organization, the EEOC will not be able to respond to any queries. Any mediations will be canceled and litigation suspended.

Labor Department, OSHA, NLRB Open

The following agencies are still open and operational during the shutdown because they already have their funding:

• U.S Department of Labor
• Federal Occupational Health and Safety Administration (an offshoot of the Department of Labor)
• The National Labor Relations Board

Thus, wage and hour compliance, workplace safety, and labor relations matters should continue.

However, because the U.S. Department of Justice (DOJ) lawyers are not working during the shutdown, any current litigation brought by DOJ is on hold.

Comments

2 comments on "Here’s the 411 on the Government Shutdown"

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HR Advisor on January 10, 2019 at 11:32:23 am said:
Thank you for your comment! That's right - it doesn't really matter if the government is open or not... employers must continue to follow federal and state laws or risk liability.
Frank Dean on January 10, 2019 at 11:23:49 am said:
Wage and Hour Compliance should continue irrespective of the shutdown -- not only because "it's the law", but because employers are subject to private law suit when not compliant

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