How will a government shutdown and no quorum at the EEOC impact employers?

At midnight on December 22, 2018, the federal government shut down.  Well, not completely. But, a lot of federal employees are working without knowing when they may get paid.

Plus, the U.S. Equal Employment Opportunity Commission is already operating on a contingency plan — and that was before EEOC Commissioner Chai Feldblum’s commission ended on Friday, which left the administrative agency without a quorum.

I think that there’s a lot here to unpack here. Let’s get to it. 

Eric, how about a recap of the government shutdown?

I’d love to, but I’m not trying to make anyone spend more than a few minutes reading this post. But, you if you want more information about how we got to where we are now and what a government shutdown could mean for the country generally, try this, this, and this.

How does the government shutdown impact the EEOC?

The EEOC is closed during the government shutdown.

That means that if your company is currently facing an EEOC Charge of Discrimination, the EEOC is not investigating it.

If you have a position statement due during the shutdown, then what? Unclear. My best guess is that you’ll get an extension commensurate with the length of the shutdown. If you want to call the EEOC for a specific answer, good luck! No one is there to answer it.

If you have a mediation scheduled with the EEOC during the shutdown, that’s not happening until the shutdown ends. When federal government operations resume, mediators will contact the parties in each matter to reschedule the mediation.  Similarly, you can make a Freedom of Information Act (FOIA) request; however, no one will respond to it until the shutdown ends.

If the EEOC is currently suing you — yikes! — litigation will be suspended unless the court does not grant a continuance.

All EEOC-sponsored outreach events are postponed during the shutdown, and the EEOC’s website will not be updated.

For more information on how the government shutdown impacts the EEOC, click here.

Commissioner Feldblum’s departure doesn’t help things, does it?

No, it doesn’t.

But, let’s back up for a second. Until Friday, the EEOC was operating with three out of five Commissioners. President Trump had long since nominated two individuals to fill the open seats.

Yadda, yadda, yadda, the Senate has not agreed to fill either position, and one of the nominees has since withdrawn his name from consideration.

While not ideal, the EEOC leadership can still function with three Commissioners, which is enough for a quorum. Except, the Senate didn’t reconfirm Chai Feldblum, who President Trump had nominated to assume a third term as Commissioner. Her commission ended on Friday at noon.  And now we have two Commissioners — acting chair Victoria Lipnic, a Republican appointee, and Charlotte Burrows, a Democrat appointee.

And no quorum.

What does this mean? Here is what Erin Mulvaney at the National Law Journal reports:

In the event of a loss of quorum, the agency would not be able to bring some cases. The commission votes on whether or not to bring certain lawsuits that would result in a significant cost or that examine a novel legal principle. Day-to-day activities will continue, and some work would be deferred to the office of the general counsel and to the regional offices.

Guidance for employers, such the recent advice about harassment in the workplace, and updated wellness rules, would also need to be cleared by the commission.

Well, this is not good.

For more on what no quorum at the EEOC means, check out this post and this post.)

Oh, and did I mention that federal courts will run out of money on Friday? More on that tomorrow.