What the government shutdown means for employers

Dive Brief:

The partial government shutdown may not have shuttered every federal agency, but it has partially closed the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS). Taking effect at 12 a.m. on Saturday, Dec. 22, the shutdown also affected the U.S. Equal Employment Opportunity Commission (EEOC).
The E-Verify system, which matches employee information with records from the Social Security Administration and DHS, has become unavailable. According to a message on its website, the site "will not be actively managed" due to "the lapse in federal funding." This means employers cannot access their E-Verify accounts to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete or edit any user account; or edit company information or terminate accounts, among other actions, according to its website. The website clarifies that employers still generally need to complete Form I-9 no later than three business days after an employee begins work and comply with all other Form I-9 requirements outlined by the Handbook for Employers and on I-9 Central.
The EEOC is also closed due to the partial shutdown, according to its website. When the government shut down for 16 days in 2013, the EEOC received 3,100 charges of discrimination, according to a report from Fisher Phillips. EEOC's website encourages individuals to submit discrimination claims to honor statutes of limitation. "The time limits depend on where the employer is located or where the alleged discrimination took place," the website said. "Generally, charges have to be filed within 300 days of the incident... These time limits may not be extended because of the shut-down." Employers with questions about current or closed charges will not be able to procure information throughout the shutdown.

Dive Insight:

The partial shutdown does not translate to relaxed compliance standards for employers. As the E-Verify and EEOC websites specified, employers and employees will need to continue to meet their responsibilities as determined by both entities.

Employers must collect all Form I-9 information in a timely fashion, as the E-Verify website stipulated, but will not be able to create a case for each new hire in E-Verify until the system is available again. They will not be penalized for not doing so throughout the shutdown, according to a blog post by Dawn Lurie, senior counsel at Seyfarth Shaw LLP. Employers will need to do so after E-Verify is restored, Lurie wrote, adding that she expects DHS' U.S. Citizenship and Immigration Services "to issue guidance — as they have during prior shutdowns — suspending the 'three-day rule' which mandates creating a query within three day of starting work for pay, for any case affected cases. Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time."

Employers should also note that they may not take any adverse action against affected employees, Lurie said, even if an employee's status rests in the TNC process. "Employees should be allowed to begin or continue to work during this time, in spite of the E-Verify delays," she said.

Employers with charges pending at EEOC will want to note the backlog of charges growing with each passing day of partial shutdown. "The bottom line is that the backlog that existed at the EEOC will continue to grow because of this delay; mediations are going to get rescheduled and action is just going to take longer," Daniel Schwartz, partner at Shipman & Goodwin LLP, wrote in a blog post.