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Employment Law Update: Post-Shutdown Outlook for Employers

In an early October Employment Law Update, we advised that the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and National Labor Relations Board (NLRB) had largely ceased operations due to the federal shutdown, with wide-ranging effects on investigations, union elections, and employer-facing services. With the federal government now fully operational after a 43-day shutdown, employers should prepare for rapid normalization across agencies, as well as renewed enforcement and several policy inflection points likely to affect compliance planning through the remainder of the year.

EEOC: Quorum Restored, Policy Shifts Likely, and Enforcement to Accelerate

During the shutdown, the EEOC continued only the most essential intake functions and preserved filings through its Public Portal while investigations and mediations stalled. The Commission has now regained quorum, and with the recent swearing in of Commissioner Brittany Panuccio, a Republican majority is positioned to revisit several recent initiatives. Employers should anticipate potential revisions to the Pregnant Workers Fairness Act (PWFA) implementing rules and anti-harassment guidance that incorporate protections for LGBTQ+ employees. Even absent immediate rescission, any recalibration will have downstream effects on training content, accommodation processes, and policy language adopted over the past year.

At the same time, the EEOC’s litigation and enforcement pipeline is expected to accelerate as regions work through accumulated intake and paused activity. Heightened scrutiny of corporate diversity, equity, and inclusion (DEI) programs is likely to continue. Employers would be well-served to review selection, promotion, and outreach practices to confirm neutral criteria, consistent application, and solid documentation of legitimate business objectives.

NLRB: Processing Resumes, But No New Precedent Until Quorum Returns

The NLRB has resumed core operations, including processing representation petitions, handling pending charges in the regions, and conducting case-related compliance activities. The Board itself, however, has not regained a quorum, limiting its ability to issue precedential decisions in the near term. That constraint does not pause organizing activity or case processing at the regional level.

Employers should expect an uptick in representation activity and continued advancement of pending unfair labor practice matters. Maintaining lawful communications protocols, supervisor training, and rapid-response plans for election petitions remains essential to mitigate risk during this interim period.

DOL: Enforcement Backlogs, Faster Field Engagement, and Adjusted Rulemaking Timelines

At the DOL, wage and hour investigations, classification reviews, and other employment standards activities that were curtailed during the shutdown are resuming, with field offices triaging accumulated complaints. Employers should expect quicker outreach from investigators and auditors as staffing normalizes and should ensure their timekeeping, exemption analyses, independent contractor classifications, and recordkeeping are current and defensible.

The shutdown also disrupted rulemaking calendars. While the DOL is returning to its broader regulatory agenda, employers should anticipate revised timelines on high-impact items, including the joint employer standard and minimum wage and overtime requirements. Compliance planning should be calibrated to formal notices as they reissue or are rescheduled, with attention to transitional effective dates and grandfathering, if any.

Practical Steps: From Pause to Prepared

The immediate post-shutdown period will feature both catch-up activity and strategic repositioning by agencies. Employers should prioritize a concise set of readiness actions: reassess accommodations workflows and documentation under the PWFA; validate anti-harassment policies and training content against current EEOC guidance while monitoring for revisions; stress-test DEI initiatives to confirm legal defensibility and neutral application; prepare for NLRB representation activity despite the absence of new precedent; and ensure wage and hour compliance and records can withstand renewed DOL scrutiny. Applying consistent decision-making, maintaining contemporaneous documentation, and closely tracking agency announcements will position organizations to navigate the resumption of enforcement and potential shifts in policy with minimal disruption.

If you have active or anticipated matters before the EEOC, DOL, or NLRB, or if you are evaluating adjustments to policies considering potential EEOC or DOL changes, please reach out to Whiteford’s Labor and Employment attorneys to map timelines, triage priorities, and align internal processes with the evolving federal landscape.

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The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.