Navigating NLRA Compliance During the Government Shutdown
When the federal government shuts down, many agencies — including the National Labor Relations Board (NLRB or the “Board”) — scale back and, in some instances, suspend operations. For employers, this can create uncertainty about how to handle labor relations issues when the NLRB is not actively processing cases, conducting elections, or issuing rulings.
However, it is critical to remember that the National Labor Relations Act (NLRA) itself is still in effect. Most private employers, regardless of whether they are unionized, remain fully bound by its requirements, even if Board enforcement is temporarily delayed.
Below are key considerations for maintaining compliance and minimizing risk during this shutdown period.
1. Eligible employees can still engage in protected activity.
Even though the NLRB may not be operating at full capacity, employers must continue to respect employees’ rights to engage in protected concerted activity, including union organizing, collective bargaining, and certain workplace discussions about terms and conditions of employment. Any action that could be construed as an unfair labor practice (ULP) today may still be investigated and prosecuted once the Board reopens.
2. Collective Bargaining Obligations Continue
Employers with unionized workforces must continue to bargain in good faith. A shutdown does not excuse an employer from meeting with union representatives, exchanging proposals, or honoring the terms of existing collective bargaining agreements. Failing to do so could result in a ULP charge once the NLRB resumes operations.
3. NLRB Operations Are Postponed, Not Erased
During a shutdown, NLRB operations, like union elections, ballot counts, and representation hearings, are generally postponed. However, once the Board reopens, timelines will resume in accordance with the Board’s procedures. Employers should track all pending matters closely and be prepared to act quickly when the government reopens.
4. Prepare for a Backlog
Once the NLRB resumes operations, employers can expect a backlog of charges, petitions, and investigations. This may delay resolution of pending matters, but it also means that any questionable actions taken during the shutdown will eventually come under scrutiny. Employers should use this time to review policies, train managers, and ensure compliance practices are up-to-date.
5. Monitor State Law in the Meantime
Although the federal government is shut down, employers should be aware of ongoing state enforcement actions. For example, New York and California enacted laws empowering state agencies to handle private-sector union cases, which would ordinarily be under the NLRB’s jurisdiction. Although such laws may eventually be preempted by the NLRA, employers in affected states should stay informed of them in the meantime.
Final Thoughts
A government shutdown may pause the NLRB’s day-to-day functions, but it does not pause the NLRA. Employers should treat this period as “business as usual” when it comes to compliance. By continuing to respect employee rights, honoring bargaining obligations, and avoiding risky shortcuts, employers can protect themselves from future liability and maintain positive labor relationships. Employers should continue to apply the same level of caution and seek legal counsel before making decisions that could implicate liability under the NLRA.
In short: the law is still in effect, even if the referees are temporarily off the field. Wise employers should play by the rules now to avoid costly penalties later.
