EEOC Contingency Plan in the Event of Lapsed Appropriations

The EEOC has developed this Shutdown Contingency Plan in the event of an absence of appropriations, as required by OMB Circular A-11, and in accordance with the Antideficiency Act, 31 U.S.C. 1341-1342, the Comptroller General's opinion of March 3, 1980, and the Attorney General’s opinions of April 25, 1980, and January 16, 1981.  This plan identifies excepted activities which will continue during the shutdown. It is expected that the shutdown process itself will be completed in less than one day.  Office Directors who believe that certain shutdown procedures will take longer than one day will need to get approval for an extension from the Chair.

I.  SUMMARY

EEOC ACTIVITIES DURING GOVERNMENT SHUTDOWN:

Pursuant to the plan, only activities involving the safety of human life or the protection of property will continue.  Specifically, EEOC will: preserve the rights of aggrieved individuals under the federal employment discrimination statutes by docketing new private sector charges, internal federal sector EEO complaints and   federal sector appeals; continue to litigate lawsuits where a continuance has not been granted; examine new charges to determine whether prompt judicial action is necessary to protect life or property and, if appropriate, file such action to obtain preliminary relief; maintain the integrity and viability of EEOC’s information systems; maintain the security of our offices and property; and perform necessary administrative support to carry out those excepted functions.  The bulk of these activities would be handled by staff in our field offices.

EEOC ACTIVITIES THAT WILL NOT OCCUR DURING SHUTDOWN:

1. Staff will not be available to answer questions from the public, or to respond to correspondence, emails or faxes from the public.
2. While we will accept charges and internal federal sector EEO complaints that must be filed in order to preserve the rights of a claimant during a shutdown, these charges and EEO complaints will not be investigated.
3. Insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts.
4. Mediations will be cancelled
5. Federal sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided.
6. Outreach and education events will be cancelled.
7. No FOIA requests will be processed.

The Agency will halt operations for all online constituent services, including  federal sector hearing and appeals and FOIA processing, except for keeping our public portal open so individuals could enter inquiries and each field office will monitor entries to see if any were nearing the end of the charge filing period.

II.  OVERVIEW

Section 124 of OMB Circular A-11 requires that agencies submit plans for an orderly shutdown in the event of a lapse in appropriations to OMB.  The Circular requires that agencies include the number of employees to be retained under the plan in the following three categories of employees: 

1) employees engaged in military, law enforcement, or direct provision of health care activities -- EEOC would retain 0 employees;

2) employees whose compensation is financed by a resource other than annual appropriations -- EEOC would retain 0 employees; and

3) employees who will protect life and property -- EEOC would retain no more than 121 staff and contract personnel, many part-time or on call. 

In a September 16, 2019, memorandum, the EEOC’s Office of Legal Counsel provided guidance on Government operations in the event of a lapse of appropriations.  As described in more detail below, after effecting an orderly shutdown of the agency, EEOC would retain a very limited number of employees under the third category to protect government and individual property rights (the “emergency” exception). 

Employees necessary to effect an orderly shutdown of the agency.  These “shutdown personnel” can be excepted from the Antideficiency Act bar based on the “necessary implication” exception.  “Shutdown personnel” may only work on shutting down the agency and must leave the workplace or discontinue telework when their shutdown responsibilities are completed.  Shutdown responsibilities include, among other things, placing messages about the government shutdown on voicemail and email accounts, canceling meetings and travel plans, requesting extensions in litigation, identifying excepted personnel and their functions, and posting a notice on the website explaining the shutdown and EEOC’s retained functions. In addition, all employees (including shutdown personnel) will be permitted to check their EEOC email for the sole purpose of checking for updates clearly labeled as “Shutdown Update” throughout the lapse.  Employees not excepted from the general shutdown are precluded from reviewing other emails not clearly related to the lapse as described above as this would be a violation of the Antideficiency Act.

Employees who perform any of the following six functions that are excepted from a general government shutdown under the “emergency” exception.  This exception to the Antideficiency Act allows an agency to accept voluntary services in emergencies involving the safety of human life or the protection of property.  EEOC has determined that, to ensure that charging parties’ or other workers’ rights under EEOC’s laws are not lost, the following six functions at EEOC fall within the emergency exception:

1. Intake of charges of discrimination, federal sector complaints, hearing requests and appeals filed with the Office of Federal Operations.   
2. Evaluation and handling, if necessary, of any charge that might require EEOC to seek a temporary restraining order or other preliminary relief under Section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2).
3. Work on ongoing litigation for which an extension has not been granted.  Where an extension has not been granted, the attorney would be excepted from the furlough only for that matter. 
4. Maintenance of the security, integrity, and viability of EEOC information systems.
5. Maintenance of the security of EEOC’s offices and property.
6. Administrative support for the excepted “emergency” functions. For example, depending on the timing of a shutdown, staff may be retained for the purpose of submitting timecards through the Quicktime electronic timecard system.  Support staff, including paralegals, could be retained to assist in unextended litigation. 

A.  COVERAGE.  This Shutdown Contingency Plan covers all EEOC officers, employees, and on-site contract personnel, except as noted below.  All activities of the agency are subject to shutdown provisions when invoked, except as noted below.

B.  EXCEPTIONS.  In the event of a lapse of appropriations, the agency is to prepare for orderly shutdown by releasing through furlough all employees except for the following:

1. Presidential appointees, who are not subject to furlough provisions;
2. Employees and contract personnel engaged in shutdown activities.  (Unless designated to perform excepted functions in accordance with section (c), these employees and contract personnel are to be furloughed at the conclusion of their respective shutdown activities.)
3. Employees and contract personnel designated by Headquarters Office Directors and agency District Directors to perform the six excepted functions listed above.  (Such employees are authorized to work only for that period of time in which they are performing excepted activities.) 

C.  POLICY. 

1. With regard to a projected shutdown in the event of a lapse of appropriations, EEOC will keep employees fully informed of developments, as known, that affect the status of their employment.  If shutdown is unavoidable, EEOC will follow this Shutdown Contingency Plan in preparing for the orderly suspension of EEOC operations and the maintenance of excepted functions.
2. No EEOC employees or contract personnel are to be retained after a funding hiatus for the purpose of protecting of life and property except when they have been designated as excepted employees as discussed below.  During a shutdown, any district or headquarters office director may request authorization from the Chair to recall additional staff to engage in excepted functions.
3. We do not expect that the total number of employees and contractor personnel assigned to perform the excepted functions listed above will exceed 5 percent of the total number of employees and contract personnel on board immediately preceding the shutdown.

III. PLANNING FOR SHUTDOWN

To prepare for a possible lapse in appropriations, the Commission will do the following:

24 hours prior: 

• Advise all employees and contractors of any developments and final guidance provided by the Office of Management and Budget.
• Prepare and distribute furlough letters and supplementary information to Office Directors, District Directors or their designees.
• Advise all employees and on-site contract personnel to report to duty the next business day after the shutdown for instructions and to engage in shutdown activities.
• Determine which contracts may continue to operate and notify contractors of their status during the shutdown.  For fully obligated contracts, the administrative functions normally performed by government employees (the contracting officer, the COTR, and other contract administrators) with respect to that contract CANNOT continue.  However, in those situations where the contractor CAN continue performance of fully obligated contracts if continued supervision or support by government personnel is not critical, for example, the contractor will be able to perform without government employees' assistance, approvals, acceptance or similar support.

IV. SHUTDOWN ACTIVITIES

The orderly shutdown of Agency operations is an excepted activity.  The suspension of Agency operations, which is to be completed as soon as possible on the day after the Commission’s appropriation has lapsed, is to be coordinated by Office Directors and District Directors.   Shutdown responsibilities would include, among other things, placing messages about the government shutdown on voicemail and e-mail accounts; canceling meetings and travel plans; requesting extensions in litigation; identifying excepted personnel and their functions; and posting a notice on the website explaining the shutdown and EEOC’s retained functions. Employees not retained or excepted should depart or discontinue telework upon completion of their excepted shutdown functions.   It is anticipated that the majority of employees will complete their shutdown responsibilities in 4 hours or less, but a small number of employees may require 8 to 16 hours.

V.  CONTINUING EXCEPTED FUNCTIONS

In order to maintain the six identified excepted functions, the following staffing levels have been authorized.

Office of Field Programs

In the absence of an appropriation, the bulk of the Commission’s emergency functions would be handled by staff in the Office Field Programs (OFP).  Of specific concern would be the preserving the rights of potential charging parties to timely file a charge of employment discrimination; and obtaining preliminary relief when we conclude, after receiving a charge, that prompt judicial action is necessary to protect workers from harm.  Date stamping all incoming correspondence will preserve federal complainants’ right to timely request a hearing. Depending upon the size of the office, OFP would authorize between one and two enforcement staff daily at each field location part-time.   The retained staff would open and date-stamp all incoming mail and review correspondence and screen inquiries made through the agency’s online Public Portal for two purposes: 1) to determine when any submitted charge or inquiry must be processed in order to avoid expiration of the limitations period for filing, processing those immediately that must be processed to avoid such an expiration, and 2) to identify charges where emergency preliminary relief is required to protect the safety of life or property.  For inquiries close to the limitations period, staff would contact the Charging Party, and conduct any necessary interview to ensure that a timely charge is taken and served.  Preliminary relief cases would be given to the retained legal staff (see Office of General Counsel below).  For the 5 offices with the largest inquiry activity (6,600 or more in FY 2018), OFP would retain two staff each day per office; for the 16 offices with the next largest activity (3,200 – 6,500 charge receipts in FY 2018), 1.5 staff would be retained each day per office; for the 12 offices with between 2,000 and 3,200 inquiries, .5 staff would be retained each day per office; and for the remaining 16 offices, OFP would retain a total of eight staff each day. 

With regard to customer service and information needs, the Commission’s Interactive Voice Response (IVR) will have a message informing people of the shutdown, providing specific instructions for potential charging parties who are nearing the time limits for filing, and telling all other potential charging parties to send a letter or questionnaire to the EEOC office nearest them or to EEOC Headquarters. For those callers who believe they are nearing the time limits for filing, staff from the IIG will screen these calls from those who want to file to make sure they can file timely.  The external website would also have a message informing the public of the shutdown with similar information and a link to the Public Portal and the toll-free number for the IIG. Depending on the availability of security in some of the offices, face-to-face accessibility may be limited.  Therefore, we anticipate that most contact with the public will be made by phone or email and not in person during the shutdown.  Two staff members would be retained in order to handle mail-in charges or inquires to Headquarters and to provide guidance to field staff on handling charges and inquiries.

Finally, 21 staff members would also be retained in order to screen calls from individuals who believe they are nearing the time limits for filing a charge and to review all incoming Intake Information Group (IIG) e-mails to filter inquires approaching the tolling of their statute of limitations period.

Total staff:   69 OFP staff would be retained each day. 

Office of General Counsel

In the absence of an appropriation, staff will be needed to monitor incoming mail concerning pending litigation; to review new charges in order to seek emergency judicial relief as authorized by statute or procedural rules; and/or to comply with litigation responsibilities and obligations under court orders where extensions and stays have not been granted. 

The Office of General Counsel will retain 15 staff members-13 Regional Attorneys in the Field (on a rotating basis)[1]  and 2 Staff in Headquarters in order to support these excepted emergency functions. 

Office of Federal Operations

In order to carry out the intake and logging of appeals and requests for reconsideration, one staff will be retained as needed to protect filing dates for intake, phone, and mail functions.

Office of the Chair and Commissioners

The Chair, and all other presidentially-appointed staff subject to Senate confirmation, will continue to carry out their responsibilities.  To support the duties of the Chair, the Chief Operating Officer or the Deputy Chief Operating Officer, Chief of Staff and one additional support staff (the Administrative Officer, the Executive Assistant, or Administrative Support Assistant) will remain on call as needed.  To support the duties of the remaining Commissioners, the Chair’s support staff person will also be able to perform payroll functions and address travel emergencies for all Commissioners as necessary 

Total staff:  4 staff would be retained or on call.

Office of Communications and Legislative Affairs

In order to maintain needed communication with Congressional and media stakeholders and provide timely and necessary information to the Office of the Chair concerning congressional developments and actions, the Office of Communications and Legislative Affairs will retain the Office Director and Associate Director on a rotational, on call basis.

Total Staff:  One staff member would be on call.

Office of Information Technology

To provide support for the retained staff and state/local government FEPA offices, the Office of Information Technology will:

• Keep all telecommunications, email and information systems that support Mission Essential Functions (MEFs) operational. Non-essential systems and services will be shut down.
• Shut down external access to electronic constituent services, except for the Public Portal to allow members of the public to submit an inquiry that can be reviewed by staff to assess whether they are nearing the end of the charge filing period, and referring all other users to a shutdown message posted to the front page of the website for more information.  This action may include disabling system-generated email notifications and other automatic processes during the shutdown period.
• Postpone any enhancements or system releases that were scheduled to be deployed during the shutdown period.
• Monitor systems remotely for automated alerts indicating system degradation or failures.
• Support operations include:
  • Retained staff will be informed to contact the EEOC Help Desk in the event of system issue/support needs.  Help Desk support during the shutdown will be minimal, focused on meeting emergency needs for retained staff and ensuring system availability.  Services will focus on support for MEFs only – other requests for IT services will be held until the government reopens.
  • OIT staff and select contractors, as described below, will be on an “on-call” status during the government shutdown.  In the event of a system/Help Desk alert, the notified individual will contact his/her supervisor or COR to alert them of the issue, the estimated number of hours needed to resolve the issue, and to seek approval for “on-call” retained function hours.  Upon approval, the notified individual(s) will work either remotely or on-site, as necessary, to return the affected system to normal operations.  Upon completion, management will be notified of the resolution and total hours worked. 
  • Hours/actions spent in support of maintaining emergency functions will be reported by OIT Management to the appropriate EEOC officials.
  • Due to the “on call” status, response times needed to return systems to normal operations may be elongated/delayed.

Total Staff:  To support the above emergency functions, the OIT will have six part-time staff members/contractors on call for security/COOP issues/incidents, to oversee computer room operations, to monitor and perform incident response for telecommunications, and to monitor and perform incident response for essential systems.  These on-call staff may contact other OIT emergency employees or contractors, as required, as long as the total number of hours does not exceed 48 hours (6 staff * 8 hours) per day.

Office of the Chief Human Capital Officer

Under a shutdown, the Office of the Chief Human Capital Officer (OCHCO) will ensure timecards are certified and released for pre-shutdown and furlough pay periods with the Interior Business Center (IBC); conduct excepted lapse in appropriations meetings with the Office of Personnel Management and IBC; process and approve furlough and unemployment actions; prepare periodic “Shutdown Update” emails and notifications for excepted and furloughed employees; respond to employee inquiries; and obtain and review timesheets from essential employees for payroll purposes. The following OCHCO employees will be retained to support these excepted operations:

• Chief Human Capital Officer;
• Operations Services Division Director; 
• Business Operations Division Director;
• Administrative Support Branch Chief; and
• Recruitment, Placement and Classification Branch Chief. 

As needed, ad hoc positions may be rotated within the five OCHCO excepted positions to perform excepted activities, to include the Employee Relations Division Director (Leave/Unemployment), Employee Services Division Director (Employee Assistance Program), HRIS Administrator, HR Specialist (Benefits), HR Specialist (Payroll), and HR Assistant (Processing).

Total Staff:  Five staff members will be retained, some full-time and some part-time.

Office of the Chief Financial Officer

In the event of a shutdown, the Office of the Chief Financial Officer (OCFO) will need to retain one employee to ensure the security of EEOC’s offices and property and to monitor the security of EEOC offices.  In addition, OCFO will need to retain staff for the following functions:  monitoring contractors performing excepted functions, financial/E2 system issues and as a point of contact for DOI/IBC business transactions.  OCFO will also need to retain one staff member to oversee financial issues including overseeing the use of credit cards and exceptions. Finally, OCFO will need to retain skeletal staff to handle incoming mail/express delivery, PO Box pickup etc.

Total Staff:   Four staff members would be retained or on call.

Office of Enterprise Data and Analytics (OEDA)

Although the functions of the Office of Enterprise Data and Analytics (OEDA) do not fall under the six identified exempted functions, OEDA will retain the Office Director and Deputy Director on a rotational basis.

Total Staff:  One staff member will be retained on call.

Office of Legal Counsel

In order to respond to legal questions from staff performing excepted functions, the Office of Legal Counsel would retain two staff members on a rotating, on-call basis.

Total Staff:  One staff member will be on call.

Office of the Inspector General (OIG),

In order to monitor system failures and alerts as well the emergency hotline system, OIG will retain one staff member on call as needed in case of emergency.

Other Offices

The Offices not named above will not have designated retained employees beyond the shutdown period.  However, should an emergency situation arise involving the protection of human life or property and necessitating the involvement of individuals from these offices, the Chair or COO will notify and retain appropriate staff for the amount of time necessary to address the specific emergency.

VI. STAFF TOTALS

A.  STAFF ON-BOARD:  EEOC expects to have approximately 2420 staff and contract personnel on board before implementation of the shutdown contingency plan. 

B. STAFF RETAINED:  EEOC expects to retain 121 staff and contract personnel, many part-time or on call, during an agency shutdown