What's open (Mount Rushmore) and what's closed (the IRS, e-Verify, and the OFCCP). Here's the latest information.
Well, at least Mount Rushmore is open again, along with the Statue of Liberty and the Grand Canyon. But for most of the Administrative Agencies related to labor and employment, things haven't gotten much better since last week, and the deadlock in D.C. continues. Here's the latest information available:
Department of Labor (DOL)
• Only 2,954 out of 16,304 DOL employees are being retained during the shutdown.
• Of the 2,954 employees, the majority of those are from the Office of Workers Compensation Programs (1,328 out of 1,606 employees); the Mine Safety and Health Administration (966 out of 2,355 employees); and the Occupational Safety and Health Administration (230 of 2,235 employees).
• OSHA will maintain operations involving enforcement of “imminent danger situations” and responses to workplace fatalities and catastrophes.
• MSHA will “perform targeted inspections based on mine’s history of the hazards” and continue “investigation of accidents and miners’ safety complaints and select sample analysis.”
• The Wage and Hour Division will suspend operations. Only 6 of 1,829 are expected to be retained in Wage and Hour, mainly to deal with child labor issues.
• Unemployment insurance benefits will not be affected by the shutdown – at least in the short term. However, because the UI program has both state and federal components, a lengthier shutdown could result in the disruption of benefits and/or the processing of new claims. Any eventual impact will likely differ by state, as each state workforce agency will have to determine how it will deal with an extended absence of federal funding and/or a lack of federal employees to administer particular components of the program.
(In addition, the following DOL agencies will have no active functions during the funding lapse: the Assistant Secretary for Policy, Office of Federal Contract Compliance Programs, Office of Public Engagement, and the Veterans Employment and Training Administration.)
• Less than 5 percent (46 out of 986 employees) are anticipated to be retained in the Employee Benefits and Security Administration to “pursue criminal cases involving ERISA plans, pursue civil proceedings and remedies necessary to prevent an imminent threat to property, particularly including plan assets, and address situations posing an imminent threat to human life due to the denial of health or disability benefits by an ERISA-covered plan.”
• The Office of Foreign Labor Certification (FLC) in the Employment and Training Administration (ETA) has ceased processing all applications. There is therefore no abioity to file a PERM or LCA application in iCert. Find a notice on the agency's website summarizing the effects of closure.
• 107 of the agency's 2,164 staff and contract personnel would remain on the job. This includes Presidential appointees, such as the five EEOC commissioners and the EEOC general counsel.
• Agency staff will not be able to answer questions or correspondence from the public; mediations and all outreach and education events will be canceled; and no Freedom of Information Act will be processed.
• EEOC will still be able to perform essential functions such as receiving discrimination charges (though investigations have been suspended during the shutdown) and litigating pending lawsuits in which courts have not granted the EEOC's requests for extensions of time.
National Labor Relations Board (NLRB)
• 11 of 1,611 employees are expected to remain on job (e.g., 5 board members, GC, senior staff).
• NLRB will be able to handle “emergency situations” but it will not docket representation petitions or ULP charges; also, ALJ’s will not issue decisions.
• All elections, including pre-election and postelection proceedings, have been postponed indefinitely if they were scheduled to occur any day from October 1 to October 11. For every election or representation case hearing scheduled to take place on or after October 14, the proceedings will be postponed indefinitely unless an appropriations bill or other legislation has been enacted by the close of business on Tuesday of the week prior to the week in which the event was scheduled. Unless an election is postponed by the board under the procedures it announced, the employer involved in the proceeding will continue to have an obligation to post NLRB’s Notice of Election forms for three full working days before the election; failure to do so will be grounds for setting aside the election.
• The Board and Acting General Counsel are responsible for carrying out the emergency functions of the agency. A summary of current activities and closures are set forth on the NLRB's website.
USCIS (US Citizenship and Immigration Services)
• USCIS is primarily funded by user fees and will, therefore, be operating, except for E-Verify, which is shut down.
DOS (Department of State – Consular Affairs, Passport Agency)
• The State Department expects to continue issuing visas to foreign nationals seeking to travel to the US and US citizens requesting passports. Many of the DOS appropriations accounts are multi-year, fee-based, or available until expended. For these reasons, DOS has made clear it will be able to continue both consular affairs and passport agency activities, at least for the short term.
CBP (Customs and Border Protection)
• Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.
EOIR (Executive Office for Immigration Review)
• As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket will be considered an essential function and would therefore be able to continue in operation regarding hearings for those in detention, with most other hearings being delayed.
Department of Health and Human Services
• In total, 52 percent (40,512 employees) of HHS employees are expected to be furloughed, though some agencies and offices would be hit harder than others.
• The department has said that "grant-making and employee-intensive agencies" such as the Administration for Children and Families and the Substance Abuse and Mental Health Services Administration will have to furlough "the vast majority of their staff.”
• In other HHS agencies and offices, programs that do not rely on annual appropriations or that involve the safety of human life or the protection of property will continue to operate. However, a number of services will be halted. For example, agencies will not be able to conduct oversight or fraud and abuse prevention efforts; the Centers for Disease Control and Prevention (CDC) will halt its annual seasonal influenza program and outbreak detection; the Agency for Health Care Research and Quality will be unable to fund new grants and contracts related to health services research initiatives; and of particular concern, the Food and Drug Administration (FDA) will be unable to support the majority of its food safety, inspection, import monitoring, and notification programs.
(NOTE: Implementation of the Patient Protection and Affordable Care Act has remained uninterrupted with the opening of the exchanges taking place even with technical “glitches.” In addition, in their contingency plans, HHS states that “CMS will conduct insurance rate reviews and assess health insurance premiums, and states will receive funding for Medicaid and the Children’s Health Insurance Program (CHIP).”)
Pension Benefit Guaranty Corporation (PBGC)
• As PBGC does not rely on annual appropriations for its funding, it is open for business.
Internal Revenue Service (IRS)
• Less than 10% (8,824 out of 94,516) of the agency's are expected to be retained, with the majority of those employed in the agency’s Criminal Investigations Unit and the Information Technology Services.
• The agency will halt audit activity.
• 4 employees are anticipated to be retained in the Affordable Care Act office (a Director, 1 in the Project Management Office and 2 in the Filing and Premium Tax Credit Strategy). 77 employees are expected to be retained in the Affordable Care Act Program Office, Information Technology Services.
Equal Employment Opportunity Commission (EEOC)