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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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.