EEOC Exclusive: Shutdown 101—What It Means, Who It Hits, and What’s Next

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Adam Dougherty: Welcome back to EEOC Exclusive, a recurring podcast regarding insider insights into the EEOC, how it works, how to respond, what certain types of communications from the EEOC likely mean, what drives the Commission, and importantly, this happened what do we do next? My name is Adam Dougherty, and I am a board-certified labor and employment law attorney who’s been practicing for 25 years. I’m a shareholder here at the firm in the Dallas office, and I’m here with my co-hosts and EEOC insiders, D’Ontae Sylvertooth and Sean Oliveira. Gentlemen, can you let the folks listening know just a bit about yourselves?

D’Ontae Sylvertooth: Thanks, Adam. My name is D’Ontae Sylvertooth. I’m a shareholder in the Washington, D.C. office. I’ve been practicing law about 15 years altogether. I started prior to law school with the EEOC as a federal investigator, worked through law school while at the EEOC. Once I became a lawyer, I became a trial attorney for the EEOC. Practiced there for a few years, stayed with the federal government, but went on the opposite side where I represented all the hospitals and maybe clinics around the world with respect to employment law matters. Then, went to private practice and ultimately, I became affiliated with Ogletree Deans because they’ve been there since. And so, I represent employers and happy to be here.

Sean Oliveira: Thanks, Adam. I’ve been practicing for about six years. I originally actually started up as an investigator at the EEOC in the New York office where I did a lot of the same cases, class cases, all high-profile cases. Then, I moved to St. Louis and worked in that district office for about 10 years, the last few of which I went to night school to study law to get out of the government and unlike D’Ontae, and once I graduated and passed, Ogletree made me an offer I couldn’t refuse, and I’ve been with them ever since.

Adam Dougherty: Awesome. Thank you, guys. So, the topic for today is the government shutdown and as we know, the government shutdown on September 30th. For some of our listeners who might not know why, why was it September 30th, gentlemen?

Sean Oliveira: So, government is on a fiscal year that starts October 1st and runs through September 30th. While there can be sort of continuing appropriations going throughout the year, and we’ve seen that in the last few years, typically Congress has to pass a bill that includes the appropriations to fund the agencies by midnight of September 30th. Otherwise, there’s no funding for any of the agencies except for in certain situations. So that’s why it closes down on the 30th, usually, when there’s a government shutdown.

Adam Dougherty: So that includes the EEOC, correct? I recently sent an e-mail to an investigator, and I received an out-of-office due to a lack of appropriations e-mail. Is that everyone at EEOC who’s basically getting a vacation?

D’Ontae Sylvertooth: Well, maybe not necessarily a vacation for those who are actually federal employees, mainly because they’re not paid during this time. So, when I was at the federal government, I’ve been through several shutdowns, several at the EEOC and then several with respect to when I was at the Navy. And the way that it essentially works is that throughout the government there’s categorizations of the importance of the work that that particular agency does. So, for instance, folks who deal with fire, emergencies, those folks are typically not off of work. They are considered essential workers. And unless there are funds that’s been appropriated by the federal government, those employees are required to work and still not get paid. But they are required to show up because they’re considered essential workers. At the EEOC, because of the fact that it is in the public interest, while it’s not the same level as for instance fire, emergency, the agency still has to operate.
And so, there are essential workers that are identified throughout the agencies, and at least when I was there, depending on the district that you were in, there was one or two individuals who were identified as essential workers. So, those folks are there to keep the lights on in the sense of keep the boat moving, although they are essentially doing everything. They’re steering, they’re paddling, all the navigation, but they’re not doing the critical work that is necessary to move charges along. So, they may still receive charges, they may still receive documentation that comes into the organization or comes through the electronic filing system, but they’re not actively investigating cases because those investigators are not at the office. So, typically, these are some of the management individuals who are identified as essential workers. Unless they’re in a situation where they could not get, for instance, a stay if there’s litigation or they could not get some kind of recourse in a sense, then some folks may still have to be pulled into work. But that’s essentially how it works. Hopefully, that answers your question, Adam.

Adam Dougherty: Yeah, it definitely does. So, it sounds like at least some of the programs and the activities that the agency are going to continue. Is that correct?

D’Ontae Sylvertooth: Yes. So, some of the things would still go on, just not at the level that you may be accustomed to. So, if you thought you were not getting the necessary five-tier customer service experience, right now you may be getting the two-tier customer service because they just don’t have the workers there to do it, but yes.

Adam Dougherty: So, it sounds like they’re still docking new charges, litigating cases where continuance hasn’t been granted, and then doing the necessary work to preserve the security, integrity and viability of the EEOC information systems. But then it also sounds like they’re effectively not beginning new investigations, conducting any mediations or hearings, or processing any FOIA requests. Does that sound about right to you, Sean?

Sean Oliveira: Yeah, that sounds almost a hundred percent right.

Adam Dougherty: Okay. So probably one thing our listeners will want to know is if they have any current deadlines with the EEOC, such as perhaps submitting a position statement or responding to a request for information. Is that something that they should still comply with?

Sean Oliveira: So, it’s a little bit of a gray area. The deadlines aren’t officially paused or canceled or anything like that, they still exist. It’s just that there’s nobody there to enforce them. So, for example, D’Ontae and I have gotten a few calls with regard to there were interviews and what do we do. Do we still show up? Particularly where these are Zoom interviews, that kind of thing. What we said is, “Yeah, show up for a few minutes and then just sort of send an e-mail saying hey, we were here. You didn’t show up,” that kind of thing. But in terms of position statements, responses to requests for information, that kind of thing, I would prepare them. I think it makes sense to still go ahead and prepare them, maybe extra looks, that kind of thing. But you don’t have to submit them until after the EEOC reopens. And usually what, I mean at least what we would do when I was an investigator is send an e-mail out saying, “Hey, we didn’t get this during the shutdown from you,” and then say here’s another couple weeks, and then get the response from them.

Adam Dougherty: D’Ontae, can you share any other personal thoughts about your experience working at the EEOC when there was a shutdown?

D’Ontae Sylvertooth: I would just say while I’m on the other side of the fence, meaning that now I’m representing employers, of course my perspective is a little different. Nothing that Sean says that I disagree with. But as an individual whose gone through several shutdowns, it’s annoying. We can’t remove the fact, the humanistic piece to it, that it is annoying, the fact that folks are working, whether you agree with what they’re doing or not, they are working, and they’re not being paid during this particular time, and unfortunately, they’re at the helm of the politicians. And so, I would say my experience, it was frustrating, particularly given the fact that I was a young dad in law school and a single dad, and I had obligations and financial obligations, but I wasn’t getting the check. And we had a shutdown, I want to say, maybe two months or so…

Sean Oliveira: Yeah, I remember that one.

D’Ontae Sylvertooth: …to the point that people were going to get unemployment benefits to help pull them over. So, I just want to keep into perspective that other folks are being affected by that, not just the deadlines that employers have to adhere to or don’t adhere to. Again, as Sean said is kind of great, not giving legal advice, but use your best judgment on whether or not you would comply with the deadlines. But there is the humanistic piece to it with respect to the folks who are impacted by this, who are working there at the EEOC. So, I do think it’s important to emphasize that.

Sean Oliveira: I remember within weeks of start of that three-month shutdown, I got a letter from basically every major credit card company saying, “Hey, here’s a credit card. We’ll give you a certain thousand dollars or whatever,” because they knew in the end they were going to be able to make some money off of it because usually Congress will pass something saying give them their back pay. They have to think as investigators and EEOC employee, any government employee you have to figure out how to live for those three months. Right now, we have no idea how long this is going to go on and neither do they.

Adam Dougherty: Well, what is y’all’s prediction for how long it will go on?

Sean Oliveira: That’s kind of impossible. It looks like it’s going to go on for a while, but it changes sort of day to day. If I had to guess, I’d say this is like one of those one to two-month shutdowns, but that’s just a guess. What do you think, D’Ontae?

D’Ontae Sylvertooth: Yeah, so I have to be fair, I have come blinded with the news because the news is depressing at some point. However, if I was a gambling man, and I’m not because I’m the type of person who would go to a casino and my minimum is $10 and if I lose $10, I’m out, so noticeably, I don’t necessarily gamble. But if I was a betting man, I would say I would give it at least a minimum of another two weeks. I would think that it would go probably four weeks, just because it doesn’t appear as if folks are trying to come to the table to actually have good conversations to figure out how they can refund the government. But we could be surprised, it could be a week. You never know the way that the politicians are moving these particular days. So, if I was to wager, I would say minimally at least two, max I would say six weeks.

Adam Dougherty: Awesome. Sean, what do you think?

Sean Oliveira: I don’t think it’ll go much longer. It’s hard to make, I think for both parties, it’s bad to go through the holidays with the bad publicity of a bunch of people being on furlough. Yeah. But it does look like they’re at a legitimate impasse.

Adam Dougherty: All right, gentlemen. Well, thanks again for your time as well as your insight, and we’ll conclude this last episode of the EEOC Exclusive and be on the lookout for the next one. Thank you, all.

Sean Oliveira: Thanks, everybody.

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