Punching In: Government Eyes Delay to Labor Cases Past Shutdown

Monday morning musings for workplace watchers

Shutdown Delays | EEOC Cases Reach Decade Low

Parker Purifoy: Department of Labor attorneys are asking the courts to pause litigation around its rules and enforcement mechanisms because of the ongoing government shutdown, delaying potential changes to regulations and resolution of complaints.

The DOL requested to temporarily suspend litigation over a Biden-era 401(k) fiduciary rule in the US Court of Appeals for the Fifth Circuit, citing the agency’s limited operations during the federal government shutdown.

The government also filed a similar motion in a challenge to a Biden-era rule on labor rights for federally-contracted building projects.

Federal courts remain open with funds separate from congressional appropriations that are enough to pay staff until Oct. 17. But the government is asking judges all across the country to postpone civil cases due to a lapse of funding. The Justice Department has said that criminal litigation will continue, along with civil matters where a judge orders the matter to move forward.

This scenario has already played out in several cases, but judges in at least 10 district courts have issued standing orders that automatically extend some deadlines or pause civil cases in which the federal government is a party.

Attorneys for DOL at the Justice Department asked for the fiduciary rule and project labor agreement cases to be paused for the length of the shutdown, plus 14 days.

The Equal Employment Opportunity Commission has also sought pauses onto cases it’s brought on behalf of workers, including against companies like Tesla Inc.

In its latest shutdown plan, the EEOC said that, though it will keep accepting charges from workers that typically initiate investigations of workplace bias, it will not carry out the probes until the government has reopened. It will only proceed to litigate cases if the court in question doesn’t grant the agency an extension.

The Oct. 1 start of the shutdown prompted the agency to move for abeyance of cases it had only just filed at the close of the 2025 fiscal year. This means several, including one the commission brought against Apple Inc. over failure to accommodate an employee based on his Jewish faith, and another targeting Delta Air Lines Inc. over failure to hire an applicant due to her pregnancy, are on hold when they’ve barely even begun.

The EEOC also successfully asked to stay an upcoming deadline in a case brought against the agency by a Catholic bishops’ group that seeks to expand a previous decision vacating part of the commission’s Pregnant Workers Fairness Act rules.

The EEOC sought to stay proceedings in another suit filed against it by FreeState Justice, which claims the commission’s recent retreat from transgender discrimination enforcement during the Trump administration is unconstitutional.

A DOL spokesperson didn’t respond to a request for comment Friday.

A cyclist rides past a U.S. Labor Department building in Washington, D.C., on Aug. 18, 2020.

Photographer: Erin Scott/Bloomberg via Getty Images

Rebecca Klar: The EEOC recently hit a 10-year low in annual litigation filings, launching just 93 lawsuits this past fiscal year.

It’s a slight drop from the 96 merit lawsuits filed in fiscal year 2024, according to a Seyfarth Shaw LLP analysis. The fiscal year 2025 lawsuit count was even lower than the 94 filed in 2020, when the Covid-19 pandemic began and many workplaces went remote for months.

Part of the EEOC’s drop in litigation filings may be due to the election of President Donald Trump and lack of quorum for much of year, according to Seyfarth partners Christopher DeGroff and Andrew Scroggins.

The EEOC requires a three-member quorum to vote on any cases that would take a position contrary to a prior stance by the commission or to circuit precedent. The EEOC lacked quorum since the end of January, when Trump fired two Democratic commissioners.

It’s not the first time the agency has lacked quorum in recent years. But a change in litigation delegation in 2020, and further refining in 2021, created a system where a majority of commissioners are required to vote on a broader swath of lawsuits. It essentially left the general counsel to file only run-of-the-mill cases without the commission’s approval.

The Trump administration came in with “directives that are contrary to what we’ve seen the EEOC operating under in the past,” Scroggins said.

Enacting those priorities would require a vote under the new standards.

“That has probably slowed down some of the things the agency could do to advance its goals,” he said.

Part of the administration’s goals, and priorities outlined by Acting Chair Andrea Lucas, is to root out diversity, equity, and inclusion programs the administration deemed discriminatory.

Potential DEI lawsuits are likely “locked and loaded” in the pipeline for when there is a quorum, and the EEOC may be saving resources for those to come in fiscal year 2026, DeGroff said.

An EEOC spokesperson did not respond to a request for comment on Friday.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.