As the government reopens, notifications start rolling in

When a government shutdown ends, employers experience the same reality every time: the lights come up, the agencies power on, and long-dormant obligations wake up and start knocking. Outlined below is a quick summary of: 1, mechanics of the restart; 2, impacted agency charges; and 3, the National Labor Relations Board backlog.

Mechanics of the restart

With federal funding restored, the “nonessential” functions that went dark during the shutdown will slowly come back online. But agencies now face a significant backlog, and it will take time to work through stalled investigations, audits, applications, and compliance reviews. While I anticipate officials will focus first on higher-risk or higher-visibility matters, it does not mean employers are out of the woods. Instead, you should take time during this slight lull to review postponed enforcement activities as well as gear up for agencies to resume their outreach, inspections, investigations, and litigation.

EEOC’s next steps

During the shutdown, the Equal Employment Opportunity Commission’s operations largely halted. Investigations ceased, litigation moved forward only when required by court order, online submissions were not processed, mediations were canceled, and staff were unavailable to respond to inquiries. The end of the shutdown obviously means all will resume.

The interesting wrinkle is that the EEOC is more powerful than it was before the shutdown. This is because the appointment of a third commissioner restored full power to the group and (for the first time since January) it will be able to carry out its regulatory functions, publish enforcement guidance, and advance major litigation initiatives. In response, employers should: 1, determine how and when any EEOC hearings were rescheduled; 2, work with counsel to extend any deadlines that occurred during the shutdown period; and 3, expect proposals to regulate private-sector DEI programs.

NLRB backlog

During the shutdown, the NLRB largely halted its operations. Filing deadlines — including briefs and appeals — were tolled, unfair labor practice hearings before administrative law judges were postponed, and representation elections and related hearings were put on hold. That said, the six-month statute of limitations for filing unfair labor practice charges remained in effect. Yet even with the lift of the shutdown the NLRB is still limited with only one active board member (two more are needed for the NLRB to issue a decision). In response, employers should: 1, calculate filing deadlines that were likely tolled during the shutdown; 2, review postponed matters and be ready for action; 3, prepare for a surge in activity as unions move quickly to file new petitions; and 4, monitor upcoming NLRB appointments, as a restored quorum may lead to rapid, policy-shifting decisions.

The government’s restart gives you very little lead time before these new obligations could fall into your lap. Employers should take this opportunity to review pending matters, reinforce compliance, and prepare for renewed agency activity.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].