91ÊÓƵ

Agencies are limiting their functions during the federal government shutdown. Some of these limitations will last only as long as the shutdown itself and some will have ongoing repercussions for the immediate future. Following are some of the agency actions that have implications for employers.

The U.S. Department of Labor’s Office of Administrative Law Judges will not perform any case-related activities during the shutdown. Cases scheduled to be heard by the OALJ have been canceled, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

In addition, deadlines occurring during the shutdown that involve case-related activities – such as responses to discovery requests, scheduled depositions or responses to orders – have been suspended. Due dates for these events must therefore be recalculated by the parties based on the number of days of the shutdown – e.g., if the government experiences a lapse in funding for 15 days, responses to discovery requests, orders and the like will be due 15 days later than the original due date.

Any disputes regarding due dates should be resolved by the parties themselves and should not require agency intervention. Before a dispute may be brought before the agency for resolution, the parties must have engaged in a good faith effort to resolve the dispute.

The National Labor Relations Board is closed during the government shutdown, and a notice on its website states, “Only such government activities necessary to prevent an imminent threat to the safety of human life or the protection of property may be undertaken…”

The NLRB’s website functions are largely unavailable, so charges cannot be filed electronically. Because of this, the NLRB is granting an extension of time to file or serve any document “for which the grant of an extension is permitted by law.”

Accordingly, the filing deadlines will be extended a day for each day the shutdown continues and the NLRB offices are closed. The NLRB emphasizes, however, that the six-month statute of limitations for filing unfair labor practice charges remains in effect.

For purposes of filing and service during the shutdown, the NLRB intends to treat the days that its office is closed the same as “Saturday, Sunday or a legal holiday” in its rules. This should have the effect of putting most filing and service deadlines “on hold” during the time the government is shut down.

The NLRB advises that persons wishing to file an unfair labor charge, and for whom the six-month statute of limitations period may expire during the interruption in the NLRB’s normal operations should fax a copy of the charge to the appropriate regional office.

Employers should be aware that it is not the NLRB’s responsibility to serve a copy of the charge on a person against whom the charge is made, and this courtesy will not likely be carried out during the shutdown.

All hearings scheduled for the week of Oct. 7 and beyond have been postponed indefinitely.

The NLRB announced that all election or pre- or post-election hearings scheduled to be conducted through this week will be postponed indefinitely.

The Department of Homeland Security announced that E-Verify, the federal government’s Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be unavailable during the federal government shutdown. Employers will be unable to access their E-Verify accounts, and E-Verify customer support and related services will be closed. As a result, employers will be unable to determine eligibility of new hires or take any other action in E-Verify until the shutdown ends.

EEOC clarifies guidance on criminal background checks

The Equal Employment Opportunity Commission recently responded to a letter sent by a number of state attorneys general urging the agency to reconsider its guidance on the use of criminal background checks in employment. The guidance at issue, which seemed to advise employers that the use of criminal background checks could open them up to discrimination charges, has been criticized since its release last year.

According to the EEOC, this criticism is based on a misunderstanding of what the guidance suggests, and it emphasized that it is not illegal for employers to conduct or use the results of criminal background checks.

The EEOC’s response states that the guidance encourages a two-step process for job applicants, with individualized assessment as the second step. Under this process, an employer would first use a “targeted” screen of criminal records, which the EEOC says “considers at least the nature of the crime, the time elapsed, and the nature of the job.” Following the use of this targeted screen, employers should then individually assess the applicants who were screened out by the first step.

According to the EEOC, the individualized assessment “is a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.” The support set forth in the EEOC’s guidance for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses.

Oregon minimum wage increases

Effective Jan. 1, 2014, Oregon’s minimum wage will increase by 15 cents to $9.10.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or [email protected].