EEOC, NLRB and DOL Shutdown Contingency Plans – The 2023 Edition

By Fiona Ong - Shawe Rosental LLP

September 27, 2023

Once again we are poised on the brink of another possible federal government shutdown, and employers may be wondering how it may impact them. The last time this happened in 2018, 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), the Wage-Hour Division (WHD) and the Office of Federal Contract Compliance Programs (OFCCP)), 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 will happen if there is an actual shutdown.

The DOL’s Contingency Plan, updated in December 2022, sets forth each of its divisions, identifying which functions they will and will not continue during the shutdown. Of particular relevance to private employers are OSHA, WHD and OFCCP.

OSHA’s contingency plan provides that it will stop all assistance, outreach, training, and rulemaking. It will also stop all enforcement activity, including programmed inspections, except for 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 from first responders, media or employers involving a high risk of death or serious physical harm with the potential to cause death
•    Review of whistleblower complaints that pose an imminent safety threat
•    Follow-up inspections of establishments with high gravity serious violations and no abatement
•    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 WHD, which enforces the Fair Labor Standards Act and the Family and Medical Leave Act, states that it will stop all regulatory work and enforcement activities that do not involve emergencies that threaten human life or property, but it will continue with the following:

•    Monitor incoming complaints and respond to emergencies in order to
prevent irreparable harm
•    Respond to and investigate any incidents involving child labor violations
•    Respond to and investigate any transportation accident or allegations of housing safety violations involving serious injury or death of a farm worker
•    Receive and process farm labor contractor certifications

As for the DOL’s OFCCP, which enforces the affirmative action obligations of government contractors and subcontractors, it will simply cease all operations during the shutdown.

In the NLRB’s contingency plan (which was updated in September 2022), the NLRB will do the following:

•    Continue necessary court actions to protect federal legal actions already taken
•    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 to protect safety of life and property or to protect federal legal actions already taken

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 (although undated, was clearly updated since the last shutdown) provides that 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 cancelled
•    Outreach and education events will be cancelled
•    Freedom of Information Act (FOIA) requests will not be processed

In addition, last time the EEOC issued a helpful What You Should Know About the Impact of the Lapse in Appropriations on EEOC Timelines. Although it was specific to the 2018 shutdown, there are some points that will likely apply this time around as well:

•    Employees can continue to use the public portal to file charges. In-person appointments that were scheduled to occur during the shutdown will be rescheduled once the government reopens
•    Cancelled mediations will be rescheduled
•    Any deadlines for the submission of information that fell during the shutdown period should be extended – last time, it was two weeks after the reopening date
•    If an employer received a notice of a charge during the shutdown period, their deadline for the position statement should also be extended – last time, it was a month past the reopening date
•    An employee’s 90-day deadline for filing a lawsuit following their receipt of a Notice of Right to Sue is not impacted by the shutdown. Moreover, if they requested reconsideration, that will not extend the 90-day period.
•    Freedom of Information Act (FOIA) requests for charge file documents will not be processed during the shutdown.

As before, we are hoping that a shutdown will be averted, but it may be helpful to know what to expect if it occurs.

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