Contingency Plans For Labor-Related Agencies During Govt. Shutdown

By Michael J. Lotito and Ilyse Wolens Schuman

With the federal government shutdown becoming a reality, several agencies have issued their contingency plans, explaining which operations would continue, and which functions would come to a halt during the shutdown period.

According to these plans, most non-essential tasks carried out by the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) will cease. The following outlines how a government shutdown will affect these agencies and their operations:

U.S. Department of Labor

The DOL’s 63-page contingency plan revises a similar plan of action the agency published in 2011, the last time a federal government shutdown appeared imminent. In general, the plan discusses which employees, if any, will remain on the job for each DOL sub-agency and which agency functions will be put on hold.

Highlights are as follows:

  • 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; 6 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 will not be furloughed, and 46 of the 986 members of the Employee Benefits Security Administration (EBSA) will stay on the job during a potential shutdown.
  • Most sub-agencies plan to suspend all operations and furlough all staff, except the personnel noted above, during the shutdown.
  • The Employment Training Administration states that during this time, no foreign labor certifications will be processed, and no Trade Adjustment Assistance determinations will be made, among other things.
  • The OLMS claims that during this time, it will suspend all activities, except for “(a) conducting investigations in criminal cases under the Labor Management Reporting and Disclosure Act (LMRDA) that have statutory deadlines that cannot be tolled or waived, and that would be jeopardized if the investigation did not continue; (b) carrying out election investigations under the LMRDA where the 60-day statutory limit for filing a complaint cannot be waived or extended, and that would be jeopardized if the investigation did not continue; and (c) supervising elections where postponement of the election would cause a violation of the statutory requirement with respect to the maximum time period for holding union officer elections or would result in a failure to meet a court-ordered deadline, absent an extension.”
  • 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 Wage and Hour Division 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.”

EEOC

According to the EEOC’s contingency government shutdown plan, the agency will continue to accept and docket new discrimination charges and federal sector appeals, as well as litigate lawsuits where a continuance has not 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.”

During a shutdown the agency will not, however:

  • 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 mediations.
  • Conduct federal sector hearings, or rule on federal employees’ appeals of discrimination complaints.
  • Conduct outreach and education.
  • Process Freedom of Information Act (FOIA) requests.

Approximately 107 of the 2,164 EEOC personnel will remain on the job.

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National Labor Relations Board

Under the NLRB’s shutdown plan, only 11 of the agency’s 1,611 employees will remain at work. The shutdown will affect all case handling and public outreach efforts. Specifically, according to the plan, the following agency services, among others, will be affected by a shutdown:

  • Representation case petition docketing, investigations, hearings and elections.
  • Unfair labor practice charge docketing, investigations, hearings, complaints, settlements.
  • District, circuit and Supreme Court litigation – injunctions, enforcement, contempt, intervening.
  • Administrative law judge and Board decisions.
  • Resolution of workplace disputes – collective bargaining, protected concerted activities, representational issues.
  • Resolution of employee/employer disputes with union.
  • Remedial action – back pay, reinstatement, reimbursement of union dues and fees, bargaining orders.
  • Information officer services.
  • Outreach and public affairs services, including public website.
  • Typical Inspector General services.

The current fiscal year ended at midnight on September 30, 2013. Since Congress could not reach an agreement regarding continued appropriations, the government shutdown began as of October 1.

This was originally published on Littler Mendelson’s D.C. Employment Law Update blog. © 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.