The Government Shutdown Affects Employers and Employees
With the government shutdown in full swing, a number of agencies have seriously curtailed or completely suspended activities, affecting the employment status of millions of Americans, immigrants, and potentially Californians, as well.
Many Department of Labor functions, having been deemed “non-essential” will cease during the shutdown. United States Citizenship and Immigration Services, having been listed as mostly essential will continue to operate with a few exceptions. The National Labor Relations Board (NLRB) will shut down almost completely, as well as the Occupational Safety and Health Administration (OSHA).
OSHA will not be conducting any inspections during the shutdown and all existing cases will be put on hold. OSHA will only be available for “emergencies involving the safety of human life or protection of property.” According to the agency, “OSHA employees should be able to respond to safety and health complaints or other information when employees are potentially exposed to hazardous conditions that present a high risk of death or serious physical harm.” OSHA advises anyone who needs to report a workplace fatality, hospitalizations, or an imminent danger situation to go ahead and contact their toll free number, as normal: 1-800-321-OSHA.
The Equal Employment Opportunity Commission (EEOC) has issued a contingency plan, and will suspend most of its activities, except for those which have been set on a docket, with courts that will not grant continuances. Other cases that are nearing deadlines have been properly docketed so that deadlines do not pass during the shutdown and will be filed accordingly. The Commission will not:
- Investigate any charges,
- Respond to questions from the public,
- Continue to litigate if relevant courts grant requests for stays,
- Hold hearings,
- Have any educational panels, or
- Respond to FOIA requests.
One major setback during the shutdown will be for those potential employees subject to E-Verify requirements and checks. The E-Verify system will be completely dark during the shutdown, and so employers will not be able to comply with the 3-day check requirements under the current rules. Forms I-9 must still be filled out however, and once the system is back up and running all employees hired or slated for hiring during the shutdown must be run through the system.
All functions of the Office of Foreign Labor Certifications will be suspended, including processing of all PERM applications. The website has ceased operations, which means that no new cases will be accepted, cases already filed will not be processed and in any cases wherein an audit notice has been issued, responses will not be accepted. This will obviously create a backlog of cases that will not be addressed until after funding is restored.
In addition, the Labor Condition Application (LCA) system, also known as iCert, has also ceased to function. Like PERM, LCAs are also filed electronically. New cases are not being accepted and existing cases are not being processed, so all action on H-1B petitions and E-3 visa applications has been halted unless they have already fulfilled the LCA certification. Employers that have not already completed the LCA will not be able to process H-1B petitions for new employees or to extend the status of existing employees.
New requests or pending requests for a prevailing wage determination to support a PERM application will also wait until government funding is restored.
If this closure continues for more than several weeks, or stretches out into months it could have serious implications for employees whose non-immigrant status is about to expire. In addition, foreign nationals who require a visa to enter the United States will have to postpone coming here until Congress decides to dedicate funds to the State Department.