The government shutdown announced yesterday is already making an impact on how companies comply with their obligations as federal contractors. Congress’ failure to agree on a new budget for the 2014 Fiscal Year has resulted in a furlough of over 800,000 federal workers, temporary closing of numerous federal agencies, and suspension of many services federal contractors rely upon to fulfill their compliance obligations.
Those effects are already being felt by contractors who use E-Verify. E-Verify is the internet-based system that federal contractors must use to verify the employment eligibility of their new hires and employees. The Department of Homeland Security (“DHS”), who oversee the E-Verify program, announced yesterday that E-Verify will be unavailable during the government shutdown. This means that contractors will not be able to enroll in E-Verify, verify employment eligibility of any new hires or existing employees, or take any administrative actions relating to their E-Verify accounts.
In addition, employees who receive Tentative Non-confirmations (“TNCs”), indicating that their employment eligibility could not be verified through the E-Verify system, will not be able to resolve those TNCs during the government shutdown. The time for employees to resolve TNCs, however, will be extended by the days that the government is closed. DHS has also warned that contractors cannot take any adverse action against an employee because of an E-Verify interim case status during the government shutdown.
Contractors will still need to timely and accurately complete I-9 forms for all new hires within three business days of hiring any employee. Contractors must use the new I-9 form that was issued earlier this year.
OFCCP Closed for Business
Contractors who have open audits with OFCCP may also experience difficulties due to the government shutdown. OFCCP has announced that it will be completely closed during the shutdown because it has been declared as part of the “non-essential” government staff. Contractors who have recently received a scheduling letter or who have an open OFCCP audit with a pending request will need to carefully consider whether they should respond to OFCCP’s during the shutdown.
We recommend that contractors conduct “business as usual” and timely submit all submissions in order to ensure full compliance. Contractors should acknowledge the government shutdown in their submissions and request OFCCP contact them after it resumes normal operations. There may be situations, however, where contractors are concerned about submitting materials by mail to OFCCP that contain confidential and sensitive information since there is no staff at OFCCP to receive the submission. In that situation, contractors should consider e-mailing the compliance officer to inform him or her that the contractor will send the submission once the government shutdown is over.