The end of the federal fiscal year is rapidly approaching. As of September 26, Congress has yet to pass a budget for the 2024 federal fiscal year that starts October 1, 2023. If Congress fails to find a way to fund the government, there will be a government shutdown. For federal contractors and subcontractors, this has raised the question “What happens to OFCCP during a government shutdown?”
When the Government Shuts Down, OFCCP Shuts Down
A government shutdown affects government agencies in different ways. Some employees deemed essential will continue to work. For example, members of the military and air traffic controllers will continue their duties. Many of the remaining government employees will be furloughed during the shutdown. According to a 2018 document from the Office of Personnel Management, employees who have been furloughed may not do any work for their respective agencies, even on a volunteer basis.
OFCCP does not fall into the category of agencies that are deemed essential and that need to continue to function during a shutdown. Thus, if the government shuts down, OFCCP shuts down. That means that:
- OFCCP compliance officers will be unable to work on open compliance reviews.
- OFCCP district offices will be unable to send scheduling letters or contact employers about current or pending reviews.
- OFCCP’s national office will be unable to issue new policies or directives, respond to questions about scheduling lists or other matters, or provide guidance to field offices.
Government Shutdown and Timelines Regarding the Start of an OFCCP Compliance Review
OFCCP is beginning to send its revised scheduling letter to federal contractors and subcontractors on the Corporate Scheduling Announcement List (CSAL) published on September 8, 2023. The revised scheduling letter (and previous versions of the scheduling letter) state that an employer receiving the letter must submit all information requested by OFCCP within 30 days of receipt of the letter. If a shutdown occurs, employers should know the following:
- A shutdown does NOT automatically stop the clock on the 30-day submission period found in a scheduling letter.
- Requests for extensions received during a shutdown will not be processed until the shutdown concludes.
If a shutdown does occur, employers that have received a scheduling letter should be prepared to submit all materials requested in the scheduling letter by the end of the 30-day period found in the letter. As soon as the shutdown ends, OFCCP is likely to expect that all materials associated with a scheduling letter will be submitted to OFCCP according to the original timeframe found in the letter.
For employers on a CSAL that have not yet received a scheduling letter, no scheduling letter will arrive during the period that the government is shut down. If there is a shutdown, employers should use this extra time to their advantage to prepare for a submission to OFCCP.
Government Shutdown and Timelines Regarding OFCCP Requests for Information
Some federal contractors and subcontractors are currently in the midst of an OFCCP compliance review where requests for additional information have been made by the agency. Other federal contractors and subcontractors may have conciliation agreement reports due to the agency soon. If a shutdown occurs, these employers should be aware of the following:
- A shutdown does NOT automatically extend the period of time associated with a request for information and does NOT automatically change the timeframe for submission of conciliation agreement reports.
- As with the opening of a compliance review, requests for extensions received during a shutdown will not be processed until the shutdown concludes.
Employers with requests for information or conciliation agreement reports should have this information prepared on the timeline originally established by OFCCP. The information can then be submitted as soon as the shutdown is over.
OFCCP Actions at the End of a Shutdown
Depending on how long a shutdown lasts, it could take OFCCP several days (or longer) to reactivate all operations. The agency may be delayed in responding to questions and requests during this period. OFCCP may be delayed in sending scheduling letters, making policy decisions, and taking other actions as employees are reintroduced to the workforce and priorities are reestablished.
Regardless of how OFCCP operates as it relaunches following a shutdown, federal contractors and subcontractors should deliver all materials OFCCP has requested on time. If an employer has a substantive question about what must be submitted, the employer should have that question ready for OFCCP and should be ready to submit anything requested by OFCCP that does not relate to that question.
Federal contractors and subcontractors should not assume there will be a long dormant period at OFCCP following the end of a government shutdown. OFCCP is likely to aggressively move forward with compliance reviews at the end of any shutdown. The agency will also be looking to gather conciliation agreement reports, follow up on requests for information, and otherwise exercise its authority to ensure employers are meeting their affirmative action obligations.