Workplace Investigations Grind to Halt in Government Shutdown

Federal investigations into labor and employment disputes will largely cease until Congress reaches a deal to fund the government, hampering resolutions for employers and their workers.

The US Labor Department, the National Labor Relations Board, and the Equal Employment Opportunity Commission have limited operations during the funding lapse, with only a fraction of their employees asked to remain on-board.

The NLRB will stop handling unfair labor practice and union representation cases. Workers’ charges of discrimination filed to the EEOC, a necessary step before they can sue in court, also won’t be processed.

“Some may prefer the delay but I think a vast majority of people want their cases to move forward,” said Thomas Lenz, a management-side attorney at Atkinson, Andelson, Loya, Ruud & Romo. “Time can have a major impact on union elections or back pay calculations and it doesn’t help to have things lingering.”

Labor Department

At the DOL more than 3,100 staff—a quarter of the agency’s normal manpower—are actively working because their duties protect life or property or because their activities are “implied by law.”

The agency is still required to conduct child labor investigations and mine inspections, according to the agency’s contingency plan. All other DOL enforcement ceases, meaning that probes into violations of federal minimum wage, overtime, or medical leave laws have stopped.

At the Wage and Hour Division, for example, only 10 of the agency’s 1,270 employees will stay on board.

The Office of Federal Contract Compliance Programs, which audits federal contractors for bias against disabled workers and veterans, suspends operations completely. All of the OFCCP’s remaining 351 employees will be furloughed.

The operations freeze would also hit the Office of Foreign Labor Certifications, which processes labor condition applications that must be certified before businesses can petition for H-1B workers and others on nonimmigrant visas.

It also administers the permanent labor certification process, known as PERM, that companies must clear to sponsor workers for employment-based green cards. Halting that process means foreign workers hoping to secure permanent residency would be in limbo.

Safety

The DOL’s Occupational Safety and Health Administration will suspend nonessential enforcement efforts as a result of the government shutdown. OSHA will keep 460 staff members active during the shutdown, down from 1,664, and the agency plans to continue operations on enforcement activities deemed as emergencies, such as inspections of imminent danger or fatalities.

The agency will not carry out any programmed inspections and will cease all activities, including compliance assistance, training classes, rulemaking, and other related outreach programs.

“OSHA is considered to be a life-saving front line agency,” said Jordan Barab, the former deputy assistant secretary for OSHA.

OSHA will continue enforcement activities on open cases needed to meet the agency’s six-month statutory deadlines where cases establish workers are potentially exposed to hazardous conditions that present a high risk of death.

OSHA provides up to 50% of funding to each of the 26 states and territories with safety and health programs. While a shutdown shouldn’t impact the enforcement operations in these programs, each in the past has decided on their own whether they’d continue operations or mimic what OSHA was doing, according to Barab.

The government shutdown would jeopardize the schedule of collecting data for the agency’s injury tracking application if it extends for a longer period.

Similarly, the Mine Safety and Health Administration will mostly stop agency activities involving outreach and training, but is required by law to continue mandated annual inspections and investigations of mines. MSHA’s staffing levels will drop from 1,590 to 879.

Benefits

The DOL’s Employee Benefits Security Administration will furlough 504 of its 668 employees.

It will only address imminent threats to workers’ retirement and health benefits that pose dangers to property or human life. It will respond to some situations where the statute of limitations might run out.

Enforcement, assistance, and rulemaking around surprise medical bills will continue, thanks to supplemental authorities from the Consolidated Appropriations Act of 2021. The law also grants EBSA authority to continue enforcement of provisions around the Mental Health Parity and Addiction Equity Act of 2008.

Union Rights

The NLRB will halt most of its work enforcing protections for workers trying to unionize their workplace. The board’s shutdown plan calls for the furlough of 1,181 of the agency’s 1,195 employees, leaving behind a skeleton crew to work alongside the acting general counsel and one sitting board member.

The NLRB will cease handling its unfair labor practice and union representation cases, which will impact docketing, investigations, hearings, elections, settlements, board and administrative law judge decisions, and other fundamental parts of the agency’s normal functioning, the plan said.

Nevertheless, the NLRB acknowledged the possibility of emergency situations that could require action.

“Each matter brought before the Board (or not ruled on due to the absence of staff) has the potential for serious labor relations strife posing a potential national emergency and may have to be addressed, if only on an interim basis pending resumption of normal operations,” according to the agency’s protocol.

EEOC

The federal anti-discrimination agency that typically operates with around 1,800 employees will only keep 128 on duty, many part-time or on-call, according to its latest shutdown protocol.

The EEOC will continue accepting charges from workers, but not take the next step of investigating them. It will only continue litigating in the federal courts where an extension has not been granted.

A shutdown can lead to charges piling up with EEOC staff unable to help enforce people’s rights, said Outten & Golden LLP partner and former EEOC Democratic Commissioner Jenny Yang.

Workers may also be dissuaded from filing charges or feel its not worthwhile to do so under a delay for an uncertain time, she added.

Hearings on federal-sector employees’ claims will be canceled, and their appeals of discrimination complaints will not be decided.

The EEOC will not be available to answer questions from the public, and outreach and events will be canceled.