With political finger-pointing at a fever pitch, the federal government effected a partial operational shutdown on October 1, 2013.   The closures continue into a second week with no end in sight.  Several employment related agencies are affected.

The Department of Homeland Security (DHS) provides a free, web-based system (E-Verify) that permits employers to check a new hire’s Form I-9, Employment Eligibility Verification information against federal government databases to verify eligibility to work in the United States.   With a few exceptions, employer use of the E-Verify system is optional.

E-Verify will not be available during the government shutdown.  This however does not absolve employers from requiring each new hire to complete the Form I-9, Employment Eligibility Verification within three business days of employment to establish he or she is either an American citizen or authorized to work in the United States.  See, our blog “New Employment Eligibility Verification Form I-9.”

When E-verify shows an inconsistency, the new hire is in “temporary nonconfirmation status” (TNC).  DHS then requires the employer and subject employee to promptly take steps to establish the inconsistency is an error, i.e., the new hire is actually authorized to work in the U.S., or is actual evidence the worker is not authorized.  While the E-Verify system is out of operation, all TNC status cases remain pending and employers may not take adverse action against any worker due to such  TNC status (e.g., terminate the person for supposedly being unauthorized when eligibility has not been established one way or the other).

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws protecting employees and job applicants from racial, gender, and several other types of discrimination.  The agency is closed during the shutdown, with limited services available.   While the EEOC will examine new charges and continue to litigate lawsuits on a limited basis, it has cancelled scheduled mediations and will not be conducting investigations or processing Freedom of Information Act requests.  It has also cancelled outreach and education events and will not have staff available to answer questions or respond to public initiated correspondence. 

The Administrative Office of the United States Courts has announced that the federal courts will remain open through October 17 by use of fees and other revenue sources.  This includes the federal courts’ electronic filing system.  After October 17, the chief judge of each district court must decide which employees and services are “essential” to the court’s constitutional duty to hear and decide cases.  By law, “essential” employees continue to work during a lapse in government spending and “non-essential” workers are laid off.  

Contact us or call one of our attorneys, Tim Bowles or Cindy Bamforth for further guidance.