Navigating Government Shutdowns: Protecting Employee Rights Amidst Disruption and Employment Law Challenges

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Hey, it’s Mark and welcome back. This uh episode today we’re talking about uh what does the government shutdown mean for your employment case? Uh when Washington shuts down, justice doesn’t simply pause. It stalls in uneven, confusing ways that can make or break an employment case. The Equal Employment Opportunity Commission, the EOC, pairs back uh to a skeleton crew. Federal sector tribunals shut their dockets, courts generally keep running. However, while the federal government sleeps, many legal deadlines keep moving. If you are pursuing a discrimination claim, a shutdown can threaten your procedural rights without warning. In this episode, I’ll explain how agencies and courts handle these lapses, what past shutdowns have shown, and what steps you and your employment attorney should take right now to preserve your claims, what actually closes and what doesn’t during a shutdown. Under the EOC’s published contingency plan, the agency suspends nearly all operations during a lapse in appropriations, investigations, and hearings are all put on hold, with only limited triage for charges nearing the end of their filing window. In plain English, new progress stops until funding returns and communication may be non existent from the agency. Federal employees get a slightly different experience through the Merit Systems Protections Board. By formal notice, the agency automatically extends all filing and procedural processing deadlines by the exact number of shutdown days. You don’t have to file a motion, the clock simply moves. That automatic extension, however, does not revive any deadline that had expired before the shutdown began. Meanwhile, the federal judiciary, which I’m part of by my practice in federal court, does not close immediately. Courts will remain open using non-appropriated funds and cases and deadlines continue as scheduled, at least for a limited period. After that, individual judges may begin curtailing operations or issuing orders extending deadlines, case by case. In short, the federal agencies may pause, but the courts keep going until it’s virtually impractical to do so, which we haven’t ever seen before. Lessons from prior long-term shutdowns. The 2018-19 shutdown lasting 35 days remains the longest in U.S. history and a cautionary tale. During that lapse, the EOC could not respond to more than 10,000 weekly inquiries, processing 15 new hundred charges or conduct mediations and hearings. When it reopened, the backlog clogged the system for months. The same pattern occurs in every lapse. The longer the shutdown, the steeper the restart. Even after operations resume, investigators face months of rescheduling, employers wait for reopen portals, and the employees risk seeing their deadlines drift into technical jeopardy. How courts are likely to handle shutdown era employment cases? Courts are signaling that a government shutdown by itself will not excuse missed deadlines or procedural defaults. When an agency’s doors are locked and filing systems are offline, equitable tolling can apply, but only if the employee can prove diligent attempts to comply. Now you may ask, what the hell is equitable tolling? It’s a doctrine the courts will follow, uh essentially that uh if you demonstrated that you tried everything you could to file uh a case with the EOC uh but were prohibited from doing so, they’ll look to see if you mailed something. If you sent something via the EEOC portal and were, you know, you received proof of, et cetera, of you know you’re unable to file, uh, you would collect all that information and you demonstrate to the court that uh you have the basis for what’s called equitable tolling. Otherwise, the ordinary 300-day charge filing and 90-day right-to-uh sue clocks continue to run during the shutdown. Federal tribunals such as the MSB or the Merit Systems Protectors Board are more forgiving, automatically extending their deadline by the length of the shutdown, but private sector litigants should expect courts to apply a case-by-case approach. In short, shutdowns may justify delay, but rarely forgiveness. Most judges will preserve procedural regular regularity and expect the parties to build a clear record of their efforts during the lapse. Do my filing deadlines stop? Usually no. Deadlines do not go away. For private sector workers, the Title VII sets uh ADA and ADA case uh charge filing cases. The deadlines typically 300 days in deferral states, um, deferral states basically is a arrangement between the federal government and each state that produces a 300-day uh window. The deferral uh 300 days are not automatically paused by an EOC shutdown. The agency itself warns that limited staff only review near deadline filings. If your deadline is approaching, you must act as if the clock is still ticking. Courts can apply equable tolling as discussed before when a shutdown makes filing impossible, but judges require proof of both the diligence and an extraordinary obstacle, not mere inconvenience. Likewise, once a right-to-sue letter is issued, the 90-day filing window in court continues to run. For federal employees, they must still contact the EEO counselor within 45 days. Uh agency silence does not extend that requirement. Short versus long-term shutdowns. What changes for your case? If the lapse lasts only a few days or weeks, expect temporary cancellations and rescheduling, but long-term damage, but little long-term damage, courts continue operating and most deadlines remain intact. If the shutdown extends for weeks or months, however, the consequences compound. The EOFC accumulates thousands of unprocessed matters every day. Mediations and hearings pile up, employer deadlines shift, and investigations stretch across physical years. Courts begin to see an influx of direct federal filings from workers who refuse to wait for reopened agencies. That means basically if the agency is closed and you get the notice of sue that comes out before the shutdown, you file your lawsuit. Don’t wait. The longer the shutdown, the more procedural gridlock, and the greater the risk that a timely claim will be lost to bureaucratic paralysis. And we saw a bit of this during the pandemic, where the courts basically shut down and didn’t know what to do. The agencies were non-existent. So it took a long time, uh, in my experience, that for the courts to uh remedy the backlog, uh, and it was essentially quite a shit show because uh I remember writing to my federal judge, uh the head judge in charge of the district, um asking, you know, when is the court going to open? Uh and they politely responded back saying that uh they’re working on it. But um eventually, it took a long time, maybe a year and a half uh for the court itself to uh remedy the backlog. It was uh a practice in patience. Uh best practices, how your employment attorney can file and protect your case during the shutdown. When the government shuts down, employees are represented by employment counts, employment lawyers have a crucial advantage. Your employment attorney can uh continue moving the case forward even while agencies are dark. Filing during a shutdown means creating a verified, verifiable record of timely submission, not waiting for someone to pick up the phone. At our office, CAREN Associates, we have systems in place to file EOC charges diligently on behalf of our clients, regardling regardless of the shutdown. In active federal court cases, our employment attorneys continue filing electronically through the court’s uh PACER system, uh, which stays open even during the funding lapses. Unless a judge issues an extension order, we proceed on schedule. We monitor every docket to ensure no client uh loses ground because of the politics in the Capitol. Uh with experienced employment counsel, filing during a shutdown becomes a matter of proof, not access. Your attorney’s documentation, portal records, postmarks, and emails establish diligence and preserve your rights, even when the government itself is closed. So there you have it. Things that you can do during the shutdown to preserve and protect your legal interest, um, to hopefully ensure that your once the uh government opens or reopens, uh your case will continue as you had planned. Hope you found this uh uh episode interesting and talk to you soon.