Government Shutdown: New E-Verify Rules; Other Impacts for Employers

The current partial government shutdown—which has been in effect since Dec. 22, 2018—is the longest shutdown in U.S. history. Unlike past shutdowns, the government is not completely closed. However, due to the prolonged nature of the shutdown, some employers are starting to feel its effects.

Here is an overview of how the shutdown is affecting private employers across the country.

Federal Agencies Impacted by the Shutdown

Employers, if they haven’t already, will soon start to feel the effects of the shutdown in terms of workplace discrimination claims, Department of Justice (DOJ) litigation and workplace immigration verification. Here is a brief overview of what the temporary closure of key federal agencies means for employers.

1. Immigration & State Department

Unlike past shutdowns, immigration-related agencies have generally remained open, lessening the effects for employers this time around.

However, the State Department is affected by the shutdown, which, in turn, means that the E-Verify system is not available for employers. As a result, below is a list of functions employers are not able to perform during the shutdown.

E-Verify Functions Employers Cannot Perform During the Government Shutdown:

• Enroll in the E-Verify system
• Create, view or take action in an E-Verify case
• Add, edit or delete a user account or company information
• Reset passwords
• Run reports
• Resolve E-Verify Tentative Nonconfirmations (TNCs)

NOTE: Despite the E-Verify system being down, employers are still subject to Form I-9: Employment Eligibility Verification obligations.

Concessions Granted by USCIS During the Shutdown

In an effort to minimize the burden on employers and employees, the U.S. Citizenship and Immigration Services (USCIS) has implemented the following policies for cases affected by the unavailability of E-Verify:

• The three-day rule for creating E-Verify cases is suspended.
• The period during which employees may resolve TNCs will be extended, regardless of how many days E-Verify is unavailable.
• USCIS will provide additional guidance regarding the three-day rule and the period to resolve TNCs deadlines once the shutdown ends.
• Employers are prohibited from taking adverse action against an employee due to their interim E-Verify case status, including when the case is in extended status due to the unavailability of E-Verify.
• Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about their deadlines.

2. Equal Employment Opportunity Commission (EEOC)

The EEOC, which is the office responsible for eradicating discrimination in the workplace, has the authority to receive, initiate, and investigate charges of discrimination filed against employers.

• The government shutdown has reduced the EEOC’s authority to receive, initiate and investigate charges of discrimination filed against employers.
• EEOC’s regular staff of over 2,000 employees has been reduced to just over 100.
• The agency is encouraging individuals who believe they’ve been subjected to workplace discrimination to file charges. However, during the shutdown the office will not begin or continue any investigations due to limited staff and limited resources. Once the shutdown ends investigations will resume in the order they were received.
• Additionally, access to the EEOC’s electronic portal has been blocked during the shutdown. This prevents employers from receiving information about any pending or closed charges they may have.
• In addition, any scheduled mediations, hearings, and litigations that directly involve the EEOC have either been canceled or suspended during the shutdown. The only exception to this is if the court does not grant a requested continuance.

3. Department of Justice (DOJ)

The Department of Justice (DOJ) is a cabinet-level agency responsible for enforcing the laws of the United States federal government. The DOJ ensures public safety against foreign and domestic threats, including terrorism, and preventing crime. The DOJ was not covered under the minibus funding bill last year, and therefore they are impacted by the partial government shutdown.

• DOJ lawyers have been furloughed during the shutdown and any litigation involving the federal government is affected.
• Civil cases have been stayed, with deadlines postponed for the duration of the shutdown.
• The DOJ has been operating with a reserve source of money since the shutdown began. However, funds ran out on Jan. 18, at which point the Anti-Deficiency Act took effect. This means only employees performing “essential work” will be retained. Because each court gets to determine which of their workers are “essential”, each court will look different.
• Criminal and time-sensitive cases are expected to be prioritized over civil litigations and employment law cases during the shutdown. As such, employers with upcoming trials should still prepare for them, but should not be surprised if their case is postponed indefinitely during the shutdown.

4. Federal Contractors

While federal contractors aren’t government employees, most businesses that perform work for agencies affected by the shutdown have been forced to suspend their operations. And, while many federal employees will receive back pay for the duration of the shutdown, contractors who are paid based on their time working will not receive any compensation.

Federal Agencies Not Impacted by the Shutdown

Due to the signing of a bill in September 2018 that funded federal agencies through Oct. 1, 2019, a handful of them remain open and fully staffed during the shutdown. They are:

1. Department of Labor (DOL)

2. National Labor Relations Board (NLRB)

This means that it’s business as usual for wage and hour compliance, as well as labor relations and workplace safety matters.

3. Occupational Safety & Health Administration (OSHA)

• OSHA, which is a part of the DOL, will remain open and fully staffed during the government shutdown.
• Employers need to continue to follow all of their OSHA regulatory obligations, including the annual Feb. 1 deadline to post information on workplace injuries and illnesses.

4. Federal Emergency Management Agency (FEMA) & National Flood Insurance Program (NFIP)

• FEMA will remain open during the shutdown to provide disaster response services.
• However, many federal contractors that work with the agency have had their operations suspended until the shutdown ends.
• Additionally, Congress passed a measure to reauthorize the NFIP just before the government shutdown began. And, while FEMA initially ruled against the reauthorization, the agency quickly reversed course and is now offering both new NFIP policies and renewals.

Click here for a complete list of federal agencies currently impacted by the shutdown.