Wyatt Employment Law Report

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NLRB Announces its Government Shutdown Contingency Plan

By Edwin S. Hopson

The National Labor Relations Board released its government shutdown contingency plan which is posted on its website at:


It states that “[i]n the event of an appropriations hiatus, it is the policy of the NLRB to:

A. Commence the orderly and expeditious shutting down of all but emergency

NLRB functions by securing files, property, and office facilities.

B. Ensure that the NLRB meets its responsibilities to the parties in current unfair

labor practice and election case proceedings consistent with the Anti-Deficiency


C. Ensure that NLRB employees are fully informed as to the reasons for the

shutdown; and that payroll and other employee benefit responsibilities are met.

D. Ensure that the NLRB retains the ability to respond to unfair labor practice

incidents that might result in irreparable harm to the private sector economy.”

The plan states that 1600 of its 1611 employees will be furloughed in the event of a shutdown, which could happen tomorrow.

The plan assumes that NLRB headquarters will have a minimal staff on the job, namely, the NLRB’s Chairman, and four other Board Members, the Acting General Counsel, the Deputy/Assistant General Counsel, the Executive Secretary, Solicitor, Chief Information Officer and Chief of Security, a total of 11.  Contacts by the public with field offices will be by voicemail.


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EEOC Announces Contingency Plans in the Event of a Shutdown

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission posted on its website its contingency plan in the event of a federal government shutdown.  Pursuant to that plan, it will continue to:

–docket new charges and federal sector appeals;

–litigate lawsuits where a continuance has not been granted;

–examine new charges to determine whether prompt judicial action is necessary to protect life or property and, if appropriate, file such action to obtain preliminary relief;

–maintain the integrity and viability of EEOC’s information systems;

–maintain the security of its offices and property; and

–perform necessary administrative support to carry out those excepted functions. 

The bulk of this work will be handled by EEOC field office staff.

EEOC’s activities that will not take place during any shutdown are:

–staff will not be available to answer questions from the public or respond to correspondence from the public;

–investigation of charges will not take place;

–insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts;

–mediations will be cancelled;

–federal sector case hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided;

 –outreach and education events will be cancelled; and

 –no Freedom of Information Act requests will be processed.

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AFGE Sues Obama Administration Over Shutdown Plans

By Edwin S. Hopson

In a press release issued today, the American Federation of Government Employees (AFGE), which represents many federal workers, announced that it had filed a lawsuit in federal court on March 30, 2011, against the Obama Administration seeking information regarding the federal government’s plans for a shutdown.  The union on March 2, 2011, had submitted a Freedom of Information Act request to the Office of Management and Budget for those details but the government did not respond.  Specifically, AFGE seeks all federal government department and agency contingency plans in the event of a shutdown.

 AFGE President John Gage in a letter to U.S. Attorney General Eric Holder, stated: 

 “The specter of a person being compelled to work without pay, under threat of legal sanctions, should have ended in this country over a century and a half ago.  And yet, the federal government is poised to demand that tens of thousands of federal workers report for duty without compensation or be fired for not showing up.  If there is a government shutdown, that is what will happen to ‘essential’ employees, although the government still refuses to provide any details.”

 A shutdown will occur if the Congress fails to pass legislation to fund government operations after April 8, 2011. In that event, AFGE President Gage is nevertheless urging his members to report to work.

The Office of Personnel Management has posted guidance to agencies which states, in part: 

“Federal agencies do not have the authority to pay their employees during a shutdown, regardless of whether the employees are working as ‘excepted’ or furloughed as ‘non-excepted.’ ‘Excepted’ employees will receive pay for hours worked when the Congress passes and the President signs a new appropriation or continuing resolution. Congress will also determine whether ‘non-excepted’ employees will receive pay for the furlough period.”


AFGE President Gage, according to a report published on Politico’s website, threatens to sue the federal government if federal workers are forced to work without pay during a shutdown.  Also according to a report in Politico, the White House has stated that some 800,000 federal employees would be furloughed in the event of a shutdown.