Federal Government Shutdown Doesn't Mean the Clock Stops for HR

Just because the federal government may be on the verge of another shutdown doesn't mean the work stops for HR. Internal investigations should move forward, even if federal investigations are paused.

If Congress fails to pass a funding bill by its midnight Sept. 30 deadline, the federal government will cease nonessential operations starting Oct. 1. While political debate continues, here is an overview of enforcement leading up to the shutdown and some of the effects a shutdown could have on enforcement, short-term and long-term.

Slower EEOC Enforcement?

Equal Employment Opportunity Commission (EEOC) investigations have already slowed, even before any shutdown, said Mike McClory, an attorney with Cable Huston in Portland, Ore. 

He said that increasingly he's seen EEOC claims closed without full investigations due to a lack of agency resources. If there's a government shutdown, there may be a backlog of claims after it. Or, McClory said, if the shutdown is lengthy, "on return, the EEOC may dismiss a number of other cases in its backlog" due to a lack of resources.

But Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said, "The cases I have with the EEOC continue to proceed. Nothing in my practice has slowed down. That doesn't mean in some cases it hasn't [proceeded]."

DOL and DHS Concerns

Wage and hour audits by the U.S. Department of Labor (DOL) would slow if there were a shutdown, McClory noted. He said he didn't think the DOL's backlog would simply be dismissed. 

During prior government shutdowns, employers couldn't enroll in E-Verify (an internet-based employment eligibility verification system operated by the U.S. Department of Homeland Security — DHS), initiate queries, access cases, or resolve tentative nonconfirmations with affected workers. 

All employers remain subject to Form I-9 obligations, however. That's the main thing employers need to keep in mind when E-Verify is down, said Dawn Lurie, an attorney with Seyfarth in Washington, D.C.

She acknowledged that it can be "frustrating" for employers, particularly federal contractors who are required to use E-Verify, when the system is down. But she noted that shutdowns aren't the only time the system isn't working. Sometimes technological glitches cause E-Verify to go offline.

"There are a lot of other things employers have to worry about on compliance," she said. "I don't think this is one of them."

Toolkit: Complying with I-9 and E-Verify Requirements

McClory added, "Even though there's a lot of political rhetoric, businesses should try to do everything they can to run their businesses as usual, including all compliance efforts."

Effects on Federal Workers

If, however, there's a shutdown, it won't be business as usual for the federal government or their employees. Mass firings of people in roles that are inconsistent with the Trump administration’s top priorities would occur, according to Politico.

Furloughed federal workers and employees who are deemed essential and continue to work are not paid during the shutdown. But they are paid for their work after the government reopens. In addition, federal employees will continue to have health care coverage during the government shutdown.  

HR's Work Goes On

While large segments of the federal workforce aren't working during federal shutdowns, "there's no hiatus for HR just because the government is not working," said Julie Moore, J.D., SHRM-SCP, president and founder of Employment Practices Group in Wellesley, Mass. 

Companies' investigations will continue into those equal employment opportunity (EEO) concerns brought to employers' attention. Although EEOC investigations of charges may be suspended, it's incumbent on HR to investigate "promptly, thoroughly and impartially" whenever it first learns of an internal complaint or EEOC charge, she said.

How-To Guide: How to Conduct a Workplace Investigation

HR should encourage employees to bring complaints, whether they are lodged internally or externally, Moore added. "Anytime an employer is on notice an employee has been targeted, an employer should really look in the mirror and take it seriously and promptly investigate" to determine whether a complaint has merit. 

In addition, HR should recognize "how important the work it does is whether the EEOC is working or not," she said, urging employers to "ensure all workers are treated with dignity and respect," including those who are "courageous" enough to step forward and file a complaint.