Government shutdown causes uncertainty for work authorization

Paul Satterwhite: Agencies enforcing federal employment laws will halt investigations amid the shutdown. 

The continuation of the federal government shutdown, which began Oct. 1, places some employers and employees in a state of uncertainty as they navigate issues such as work authorization and ongoing federal cases involving employment laws, says a Springfield attorney.

Paul Satterwhite, partner with Spencer Fane LLP, said he’s received more than a dozen calls from clients in the few days since the shutdown started after Congress failed to come to an agreement on extending government funding at the beginning of the month. Democrats want to renew subsidies to cover health insurance costs, while Republicans and the Trump administration seek to preserve existing spending levels.

Satterwhite said the primary questions he’s hearing from employers involve the E-Verify system, which is a web-based tool, managed by the U.S. Department of Homeland Security, that helps employers verify the legal work authorization of new hires. It compares information entered by any employer from an employee’s I-9, an employment eligibility verification form, to records available to the U.S. Department of Homeland Security and the Social Security Administration, to confirm work eligibility. Nearly 1.4 million employers are enrolled in the system, according to the E-Verify website.

Spencer Fane released a client alert on Oct. 1, written by Satterwhite and Randi Winter, an attorney in the firm’s Minneapolis, Minnesota, office, to offer guidance about E-Verify and other federal issues that could be impacted by the shutdown. Satterwhite and Winter said E-Verify was disabled on Oct. 1, and they noted that was expected, as the system was temporarily unavailable during prior shutdowns, as well.

“It requires employers to use the alternative process, which is really the old paper process and submissions, which, if you’ve been doing something completely different for a lengthy period of time, is a large change in that process,” Satterwhite said. “They still have to stay in compliance. They still have to take the steps to make sure that if there’s an issue down the road with someone that they’ve hired, that they’ve gone through the I-9 verification process.”

U.S. Citizenship and Immigration Services recently confirmed that employers are permitted to continue using the remote I-9 document verification under the agency’s approved alternative review process, according to the law firm’s client alert. While USCIS operations will continue, field office staffing is likely to be reduced, and many visa and citizenship applicants who require verification through other agencies will likely see their applications put on hold. Additionally, the U.S. Department of Labor will stop processing prevailing wage determinations and other certifications required for many forms of work visas and green cards.

Satterwhite said most federal agencies that enforce federal employment laws will halt investigations and enforcement actions amid the shutdown. That includes the National Labor Relations Board, the Equal Employment Opportunity Commission and the Labor Department.

“For employers who have ongoing issues or matters pending with the federal agencies, very few of those are going to go forward during the shutdown,” he said.

He said an example is cases involving unfair labor practice charges.

“If someone has an EEOC charge pending, then those won’t be investigated during this. [If] they have an issue going on with the National Labor Relations Board, that will be paused during this time period,” he said.

Satterwhite said the shutdown will result in uncertainty for both employers and employees as they deal with federal agencies that regulate private and public employment.

“It creates challenges all the way from onboarding employees to issues that occur after termination, which is usually when the EEOC charge is filed,” he said. “For unionized employers, there can be impact during the time that employees are still employed.”

Satterwhite says he’s heard from law colleagues in other cities who have received even more calls than he has. He said he expects the calls will continue to come in but is unsure if the trickle-down effect of the shutdown will be limited or significant at this early stage.

“The intent of our client alert was to inform employers of the information we have, but even more so just to let them know that there’s a lot of uncertainty tied with this and that we’re going to be figuring it out as we go forward,” he said.