EEOC, NLRB and DOL Shutdown Contingency Plans – The 2018 Edition

By Fiona W. Ong - Shawe & Rosenthal LLP

January 19, 2018

Here we are again on the brink of another federal government shutdown, and employers may be wondering how it may impact them. The last time, during the 2013 federal government shutdown, we provided a summary of the shutdown contingency plans for the major employment-related agencies – the Department of Labor (DOL) (which includes the Occupational Safety and Health Administration (OSHA) and the Wage-Hour Division (WHD)), the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC).  So we thought we’d provide you with an updated summary of these plans, which set forth what the agencies will and will not do if there is an actual shutdown.

The DOL’s contingency plan (updated in 2017 but just issued on January 18, 2018) includes a submission from each of its divisions, identifying what functions they will continue during the shutdown. All other functions will be suspended during the shutdown.  Of particular relevance to private employers are the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division (WHD).

OSHA’s contingency plan provides that it will continue to address emergency situations, which includes the following:

• Inspection of imminent danger situations, meaning that “a danger exists which could reasonably be expected to cause death or serious physical harm immediately”

• Investigation of workplace catastrophes and deaths

• Investigation of safety and health complaints or other information received from police, fire departments or other first responders, media sources or employers establishing that employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm with the potential to cause death

• Follow-up inspections of establishments with high gravity serious violations, where the employer has failed to provide evidence of abatement in response to OSHA’s request

• Enforcement activities on open cases needed to meet agency six-month statutory deadlines where those cases establish employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm with the potential to cause death

The DOL’s Wage and Hour Division, which enforces the Fair Labor Standards Act and the Family and Medical Leave Act, stated in its contingency plan that it will only take action “Necessary to respond to emergencies involving the safety of human life or the protection of property.” This means that it will immediately investigate incidents involving the serious injury or death of a minor while employed, any transportation accident, or any housing safety violation involving the serious injury or death of a farm worker.

In the NLRB’s contingency plan (which was updated and issued on January 18, 2018, just in time for the looming shutdown), the NLRB lists those services and programs that will remain operational during the shutdown, which are intended to protect federal legal actions already taken or to protect life or property.  The NLRB will:

• Continue to litigate necessary court actions

• Maintain the Office of Inspector General hotline, to receive calls in order to protect safety of life and property

• Maintain the emergency contact telephone number for the public

The NLRB has also identified programs and services that will be closed during the shutdown, as a result of which the following functions will not be performed:

• Representation case petition docketing, investigations hearing and elections

• Unfair labor practice charge docketing, investigations, hearing, complaints and settlements

• Other federal court litigation

• Administrative Law Judge and Board decisions

• Resolution of workplace disputes, including collective bargaining, protected concerted activities, and representational issues

• Resolution of employer/employee disputes with the union

• Remedial actions including backpay, reinstatement, reimbursement of union dues and fees, and bargaining orders

• Information Officer services to receive calls from the public and provide information about the NLRB’s functions and procedures

• Outreach and Public Affairs services, including the website

• Typical Inspector General services

The EEOC’s contingency plan (which was previously issued on September 25, 2015) states that the EEOC will continue to perform only those functions “involving the safety of human life or the protection of property.”  Specifically of interest to private sector employers, the EEOC will:

• Docket new charges

• Continue to litigate lawsuits where a continuance has not been granted by the court

• If necessary upon reviewing a new charge, file a court action to obtain preliminary relief to protect life or property

• Maintain the EEOC’s information systems

• Maintain the security of the EEOC’s offices and property

• Perform necessary administrative support to carry out the above functions

The EEOC has also listed the functions that it will not perform during the shutdown:

• Staff will not be available to answer questions or respond to correspondence

• Charges will not be investigated

• Litigation will be put on hold, to the extent courts grant the EEOC’s requests for extensions of time

• Mediations will be canceled

• Outreach and education events will be cancelled

• Freedom of Information Act (FOIA) requests will not be processed