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Final Rule - Official Time in Federal Sector Cases before the Commission

N 6570-01P

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AB00

Official Time in Federal Sector Cases before the Commission

AGENCY:  Equal Employment Opportunity Commission

ACTION:  Final Rule

SUMMARY:  The Equal Employment Opportunity Commission (EEOC or Commission) is issuing a final rule to amend its rule regarding official time for representatives who are employees of the federal government.  The final rule clarifies that the Commission’s rule concerning official time does not apply to representatives who serve in an official capacity in a labor organization that is the exclusive representative of employees in an appropriate unit.  Further, the final rule clarifies that whether such individuals receive official time when serving as representatives is a matter governed by the Federal Service Labor-Management Relations Statute.

DATES:  This rule is effective [30 days after date of publication].

FOR FURTHER INFORMATION CONTACT:  Andrew Maunz, Legal Counsel, at andrew.maunz@eeoc.gov or (202) 663-4609.  Requests for this document in an alternative format should be made to the EEOC’s Office of Communications and Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION:

I.                Introduction

On December 11, 2019, the Commission published in the Federal Register a Notice of Proposed Rulemaking (NPRM) proposing to revise 29 CFR 1614.605(b), concerning the availability and use of official time with respect to EEO proceedings.  84 FR 67683.  A second notice announcing an additional 60-day comment period was published in the Federal Register on June 1, 2020, and it concluded on July 31, 2020.  85 FR 33049.

A federal employee who brings a complaint covered by Part 1614 is entitled to be accompanied, represented, and advised by a representative of the employee’s choice throughout the processing of the complaint.  29 CFR 1614.605(a).  This representative may be, for example, the complainant’s lawyer, a family member, or, as relevant here, another agency employee.  Id. § 1614.605(b).  If the complainant chooses another agency employee as his or her representative, the employee representative is entitled to a reasonable amount of official time to prepare EEO complaints and respond to the Commission’s requests for information.  Id.  “Official time” is paid time used by federal employees performing particular activities in lieu of their regularly assigned job duties and responsibilities.  It is considered work time or regular duty time, and is counted as hours worked, even though it is not directed by the agency.  

Section 1614.605(b) addresses the availability of official time for federal employees while they are pursuing their own discrimination complaint or serving in the capacity of a representative for another employee.  As noted above, the regulation provides a “reasonable amount” of official time to any agency employee serving as a complainant’s representative. The Commission proposed to amend section 1614.605(b) to exclude from the regulation’s grant of official time to employee representatives those individuals serving in an official capacity for a relevant labor organization.  The Commission explained that this revision would harmonize its regulations with the Federal Service Labor-Management Relations Statute (FSLMRS), which has a specific provision outlining the availability of official time for union officials.  The Commission believes that the FSLMRS should be the sole source governing official time for union officials related to EEO proceedings.  See 84 FR at 67684; see also 5 U.S.C. 7131(d).  As a result, the Commission’s proposed rule would provide more clarity to unions and agencies on the aspects of official time that should be negotiated during collective bargaining.  See 84 FR at 67684.

As more fully explained below, the Commission received a significant number of comments in response to its proposed revision of its official time regulation—some in favor and others opposed.  The Commission responds to the substance of these comments below.  Several entities submitted comments in opposition to the proposed rule. These commenters argued, in part, that the rule change was unjustified, would harm employees, and was discriminatory against unions. And, as a result of a union letter writing campaign, the Commission received  a significant volume of identical comments against the Commission’s proposal, stating that the proposal would harm workers and undermine the EEOC’s mission.  The Commission also received comments in support of the rule.  These commenters, primarily federal agencies agreed that the Commission’s proposal will ensure consistency with the FSLMRS in a legally appropriate and sound manner.  In addition, these commenters indicated that this rule change would improve collective bargaining and enhance government efficiency—and offered several real-world examples in support.

After considering all comments received, the Commission shall implement the proposed rule for the reasons articulated below.  The final rule ensures that the Commission’s regulation does not interfere with the FSLMRS or serve as an independent source of official time for union officials for which Congress did not expressly provide in enacting the FSLMRS.  The Commission is not persuaded by the arguments raised by commenters opposed to the rule.  This rule change is well-within the Commission’s authority to implement the federal sector portion of Title VII and is needed to clarify what are currently duplicate sources of official time for union officials.  The change will bring more certainty to government operations, and also ensure that the EEOC’s regulation does not overstep and infringe on a separate statutory scheme.  The Commission’s reasoning is more fully explained in its responses to comments below.

II.             Comments Received

The proposed rule received comments from the public during two distinct comment periods.   

During the first comment period, the Commission received 1,829 timely comments.  Most comments were from individuals who opposed the proposal as part of a form letter submission and one union submitted 5,003 signatories to the same form letter as one comment.  Fifteen labor unions wrote in opposition to the proposal.  The Commission also received comments in opposition from five U.S. Senators who are members of the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) and 86 members of the U.S. House of Representatives.  Seven advocacy groups submitted comments in opposition to the proposal.  Two agencies wrote in support of the proposal.  One sub-component of an agency did not explicitly support or oppose the proposal but suggested an alternative approach.  One individual commenter wrote in support of the proposal and suggested a change.  The comments and the Commission’s responses are discussed in more detail below.

During the second comment period, the Commission received 5,751 timely comments.  Three federal agencies (two of which provided comments during the first round) and five individuals wrote in support of the proposal, and two individual comments were non-responsive.  One individual comment was neutral.  Most comments opposing the proposed change were again from individuals, with 5,732 nearly identical form letter submissions.  One union submitted the same form letter as one comment with 6,075 signatories.  Four labor unions each wrote in opposition to the proposal.  The Commission received comment letter in opposition signed by 185 members of the U.S. House of Representatives and a joint letter from Representative Carolyn Maloney, Chairwoman of House Committee on Oversight and Reform and Representative Bobby Scott, Chairman of the House Committee on Education and Labor.  An advocacy organization also again submitted comments in opposition to the proposal during the second comment period.   The comments in opposition received during the second comment period largely echoed comments that the Commission received during the first comment period, but during the second comment period, commenters cited the coronavirus pandemic and the fact that the Commission a re-opened to comment period at all as additional justifications for why the rule should not move forward.

III.           Comments Supporting the Proposal and Commission’s Responses

Comments from the U.S. Office of Personnel Management (OPM):  OPM submitted a comment during both comment periods, both of which strongly supported the proposed change.  In its first letter, OPM distinguished “official time” under the FSLMRS, which is only available to union officials, from “official time” in the EEOC’s regulations, which allows union and non-union employees and representatives alike access to official time under Part 1614 of the Commission’s regulations.  OPM stated that there is confusion regarding these types of official time, specifically whether the EEOC’s current regulation provides an independent authorization for union officials to receive official time notwithstanding the FSLMRS. The absence of clarity regarding the application these regimes in EEO proceedings may impact the ability of both agencies and unions to address official time during collective bargaining.  OPM supported the Commission’s proposal to clarify that the FSLMRS is the sole source of official time for union officials because it would allow agencies and unions to collectively bargain over the matter in a centralized manner as well as to better assess and help prevent runaway unanticipated costs.  OPM also observed that the proposal gave proper deference to the Federal Labor Relations Authority’s (FLRA) statutory authority to administer and adjudicate issues involving union official time.

In its first comment, OPM suggested several revisions to the proposed regulation text as well as the preamble.  It urged the Commission to explain that its proposal merely clarified the “scope” of official time in the EEOC regulation while emphasizing that the FLRA’s exclusive authority in this area.  OPM also suggested that in the preamble of the final rule the EEOC should: (1) rename “official time” in EEO proceedings as “duty time” to distinguish it from official time under FSLMRS, (2) clarify that Commission’s decision is based on legal deference to the FLRA rather than its own policy determination, (3) clearly state that while the change is not meant to preclude the use of official time for EEO proceedings by union officials, it provides that any authorization of official time must be determined pursuant to FSLMRS, and (4) emphasize that, as a result of such a shift, union officials’ official time will not be administered by the EEOC, nor would the EEOC adjudicate any disputes regarding authorization of official time.

It its second comment, OPM reiterated its strong support for the proposed change.  Significantly, OPM stated: “In OPM’s experience, permitting two separate sources of official time for EEO matters makes it more difficult for agencies to manage their workforce efficiently.”  Specifically, OPM noted that the separate source of official time in the Commission’s regulations meant that other agencies “cannot rely on part-time union representatives to be ready and available to work at predictable times.”  According to OPM, the EEOC’s rule change would solve this problem.  OPM also noted that Executive Order (EO) 13837 (May 25, 2018) encouraged agencies to authorize collectively bargained official time to a rate not to exceed one hour per bargaining unit employee.  According to OPM, union officials would have sufficient time to still represent employees in EEO matters, even if the collective bargaining agreement was the sole source of official time and the official time was capped in accordance with Executive Order 13837.

Response:  The Commission notes that OPM is statutorily tasked with overseeing the country’s civil service laws, so their insight is particularly important on this issue.  See 5 U.S.C. 1103.  The Commission agrees that it is important to distinguish official time granted through the FSLMRS and official time available through the EEOC’s regulations.  As OPM notes, the FSLMRS’s grant of official time to union representatives is different from that granted to ordinary federal employees.  Indeed, the NPRM observed that the FSLMRS states explicitly it is meant to deal with the unique relationship between unions and federal agencies.  See 84 FR at 6784.

The Commission’s final rule will eliminate a duplicate source of official time for union officials outside of the detailed statutory scheme Congress enacted in the FSLMRS.  Given the unique privilege that Congress extended to labor officials and the Commission’s compelling interest in avoiding interference with the federal labor-management process, the proposed regulation protects negotiated official time while continuing to provide official time to employees who do not otherwise have an ability to receive it.  As OPM noted, the Commission’s change to its rule would alleviate the problems that agencies face when having to deal with two separate sources of official time, specifically the unpredictably that the EEOC regulation caused after agencies and unions had already bargained for official time.  The Commission’s amendment of its official time rule will provide more predictability and stability to the management of the federal workforce.  This is because agencies will be able more accurately to plan and forecast staffing needs based on the official time arrangements and parameters negotiated during collective bargaining.  The Commission further notes that the data provided by OPM demonstrates that the proposed regulation would not impact the ability of union representatives to assist employees within the limits negotiated between agencies and employees pursuant to the FSLMRS.

Regarding OPM’s suggestions for specific changes to the regulatory text, the Commission believes that the proposed language provided a better explanation for the regulatory change than the language suggested by OPM.  Replacing the term “paragraph” with “scope” will cause the rule to become less clear as it is not readily apparent what the “scope” is meant to encompass.  Furthermore, OPM’s suggestions for the last sentence of the additional language, which it believes would make the FLRA’s authority more explicit, is an unnecessary change.  The Commission’s proposed rule makes it clear that union officials’ official time will be dictated by the FSLMRS, which inherently means that the FLRA interpretation of the FSLMRS and its adjudication of disputes under the statute will determine this issue.

Regarding OPM’s suggestion to change the Commission’s terminology from “official time” to “duty time,” the Commission elects to finalize the language as proposed.  The Commission, and prior to that the Civil Service Commission (CSC), have long used the term “official time.”  While the official time provided through EEOC regulations is different and distinct from official time as that term is used throughout the FSLMRS, the underlying concepts are the same.  Ultimately, “official time” under both the Commission’s regulations and the FSLMRS allows the payment of a federal employee by his or her agency to conduct non-agency business.  Introducing a new term for a functionally identical category of compensatory work time could cause confusion.  Instead, continuing to use the term “official time” uniformly, as it has been used for decades, will ensure greater clarity and minimize the potential for confusion.  By retaining the term “official time,” employees and agencies will need to resolve only the source of the employee’s official time, the FSLMRS or EEOC regulations.

The Commission declines OPM’s invitation to the Commission to revise its justification and reasoning behind its proposal because it does not agree with OPM’s premise that there is a principled distinction between deference to FSLMRS and a policy decision. The Commission recognizes that Congress provided the means for union officials to receive official time through the FSLMRS and that it is inappropriate for the Commission to usurp Congress’s statutory scheme through its regulations.  However, due to the Commission’s broad authority to administer Title VII of Civil Rights Act of 1964 in the federal government, the Commission believes that its decision to defer on this issue to the FSLMRS is, itself, ultimately a policy choice for the Commission.  See 42 U.S.C. 2000e-16(b).

Regarding OPM’s final two points, the Commission agrees that the regulation should unambiguously provide that union officials are not prohibited from using official time in EEO proceedings, but the source of the official time will be the FSLMRS, and that it should be clear that the EEOC will not be involved in approving union officials’ official time or adjudicating any labor disputes about the issue as it relates to collective bargaining.  The Commission believes that the regulatory text approved below make these points.

Comments from the U.S. Department of Veterans Affairs (VA):  The VA strongly supported the Commission’s proposed rule, stating that it would make it easier to manage its workforce and improve its ability to serve veterans and their families.  The VA explained that union officials being entitled to nearly uncapped official time through the EEOC’s regulation makes it extremely difficult for the VA to forecast staffing availability and manage its workforce such that its ability to serve veterans occasionally suffers.  Regardless of the official time rules and procedures that the VA negotiates during collective bargaining, the VA states that the EEOC regulation allows union officials effectively to end run these negotiated provisions and receive nearly unlimited additional official time hours for EEO matters.  The VA also noted that section 1614.605(c) which allows agencies an opportunity to disqualify a representative under very limited circumstances does not allow it to adequately address the problems that the current version of section 605(b) creates.  For example, if the VA negotiates that a union official will spend 20% of his or her time on union matters and 80% of his or her  time on the union official’s VA duties, the VA must be able to plan around that 80% in order to complete VA’s critical work.  However, the EEOC regulation makes it very difficult for the VA to plan because the union official can use additional official time for EEO matters pursuant to the EEOC regulation to spend more than 20% of his time conducting union business.  As a result, the VA believes that the proposed amendment will immediately benefit veterans and their families. For example, the VA notes that each day a mental health provider is on official time and away from their office, 6 to 12 “veterans go without the mental health care they deserve, they earned, and they desperately need.”  According to the VA, the certainty that the Commission’s  regulatory change would provide would “improve the VA’s ability to schedule its employees and appropriately staff its facilities.”

Response:  The Commission appreciates the VA detailing not only the ways in which the current rule burdens its operations but also illustrating the ways in which it anticipates the  rule will improve agencies’ abilities to fulfill their missions.  The VA comment highlights how the EEOC’s regulation providing a separate source for official time allows union officials effectively to bypass the balance that Congress sought to create through the FSLMRS’s official time provision in EEO cases and negotiated in collective bargaining agreements.  Indeed, agencies and unions may bargain over the official time that will be available for union officials so that agencies may make staffing decisions consistent with the agreed-upon paradigm.  However, the EEOC’s current regulation undercuts both the negotiated entitlements and stability for which the parties negotiated during collective bargaining agreements within the framework of the FSLMRS.  The Commission’s final rule will restore this balance and fix this problem, allow agencies to better plan their workforce allocations, and improve agencies’ abilities to serve the public and fulfill their important missions.

Comments from the U.S. Department of Agriculture (USDA):  The USDA submitted a comment during each of the comment periods.  In its first comment, the USDA supported the Commission’s proposal.  The USDA stated that the proposal is consistent with the intent of the FSLMRS and may prevent labor organizations from circumventing Section 4(a)(v)(1) of Executive Order (EO) 13837, which states “…[e]mployees may not use taxpayer-funded union time to prepare or pursue grievances (including arbitration of grievances) brought against an agency under procedures negotiated pursuant to section 7121 of title 5, United States Code, except where such use is otherwise authorized by law or regulation.”   Furthermore, the USDA pointed out that both the FLRA and the United States Court of Appeals for the District of Columbia Circuit have held that EEO complaints fall under the definition of “grievance” in 5 U.S.C. 7103(a)(9).  Finally, the USDA stated that the EEOC’s existing rule permits an interpretation that is inconsistent with EO 13837.

In its second comment, the USDA wrote in support of the Commission’s proposal, reiterating its position that the proposed regulation aligns with the intent of the FSLMRS and may prevent labor organizations from circumventing EO 13837.  In addition, the USDA argued that the rule change would improve agencies’ abilities to track official time as required by EO 13837.  The USDA noted that while EO 13837 requires agencies to track and report to the White House official time used pursuant to the FSLMRS, the order does not require agencies to report official time used pursuant to EEOC’s regulation, 29 CFR 1614.605.  The USDA maintained that the proposed rule would establish clarity and eliminate unnecessary bargaining over two potential regulatory sources of “official time”.  In the past, negotiators have questioned whether to bargain separately over the number of hours provided by the FSLMRS and the number of hours devoted to a complainant’s personal EEO matters.  As such: “The proposed regulation alleviates this uncertainty by providing a coherent, centralized process for assessing and allocating official time under the FSLMRS.”

Finally, the USDA also requested that the Commission add regulatory text to clarify that any dispute regarding authorization of union official time will not be adjudicated by the EEOC.

Response:  The Commission’s  rule is independent of, and not contingent upon, EO 13837.  As a result, even if EO 13897 is repealed or replaced, the Commission’s  final rule would remain in effect.  And, as the USDA correctly observes, while EO 13897 remains in effect, the Commission’s final rule clarifying that the FSLMRS is the only source of official time for union officials will only improve compliance with the EO.

The USDA is correct that the FLRA and D.C. Circuit have held that “grievance,” as used in the FSLMRS, extends well beyond negotiated grievance proceedings to include actions pursuant to other statutes, including EEO proceedings.  See FAA and Professional Airways Systems Specialists, 60 FLRA 819, 821 (2005) (stating that the term “grievance” in the FSLMRS includes “formal EEO complaints and mediations sessions over those complaints”); see also NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (finding that “grievance” encompasses proceedings before the Merit Systems Protection Board).  Ultimately, how much official time is available for “grievances” is not a matter the EEOC should decide.  Instead, it should be left to the agencies, unions, and any applicable executive orders.  Indeed, the case law cited above reveals the considerable extent to which labor issues already are interconnected with EEO proceedings.  The Commission believes that this further demonstrates the need for this final rule and the clarity it provides.

Wherever reporting requirements for official time exist, the final rule makes them more straightforward.  Having one source of official time for union officials will allow both unions and agencies to better track the use of official time and avoid the need to identify the source of official time other than may be required by applicable collective bargaining agreements.

As noted above, collective bargaining negotiations are the natural and most legally appropriate place for unions and agencies to determine how much official time union officials should  be permitted to use under the FSLMRS on all matters.  The Commission’s current regulation serves only to allow parties to bypass—or end-run—certain official time to which they agreed in collective bargaining. 

The USDA’s insight about bargaining provides further support for the rule change.  When the Commission first proposed the rule, it stated that the rule change would provide greater clarity to agencies and unions regarding what they need to bargain.  The USDA confirmed this outcome—namely that the presence of official time through the EEOC’s regulation produced confusion about issues related to the regulation and official time during bargaining.

The Commission declines the request of the USDA to add language to the rule concerning the adjudication of disputes regarding official time because such language is unnecessary and beyond the authority of the Commission.  The EEOC lacks jurisdiction to hear and resolve disputes between unions and agencies regarding official time. Even if it did, however, the Commission is promulgating this rule to extract itself from labor relations issues in the federal government.  The EEOC will not be involved in these disputes.

Comments from Individuals:  An individual who supported the rule recommended that the Commission add a provision to the final rule that would prohibit union officials from leaving their union role to become eligible for official time under the other provisions of the regulation.  The commenter stated that without such a provision union officials could “spend more time in representational activity than performing work.”

Five other individual commenters supported the proposal and stated that the allocation of government time to pursue EEO complaints diverted attention from agencies’ missions and was a poor allocation of scarce government resources that burdened non-union employees.  Indeed, one federal employee commenter stated that he or she had been required to “pick up work not being done by [a] union representative” because that individual was on official time.

Response:  The Commission regulation will not interfere in the internal governance of unions.  To the extent that official time may be addressed during bargaining, that will set “reasonable” limits on the amount official time available to union officials.  See Management Directive (MD) 110, Chapter 6, VII.C.  The Commission appreciates the concern raised by commenters regarding both the impact of unlimited official time claimed through its regulation on other employees as well as the deleterious effect it may have on the ability of agencies to perform their missions.  This rule allows agencies to better plan based on  the availability of its workforce without involving the Commission in the internal affairs and governance of public sector unions.

IV.           Comments Not Explicitly Opposing or Supporting and Commission’s Response

Comment from Department of Army Assistant G-1 Civilian Personnel:  This subcomponent of the Department of the Army suggested that the Commission rename the time received pursuant to EEOC regulations as “EEO time.”  Furthermore, the commenter suggested that union officials solely representing a complainant should receive “EEO time,” not taxpayer-funded union time, for EEO activities.  The commenter suggested that the new terminology would clearly distinguished the proposal from official time under the FSLMRS and make it easier to track official time under EO 13837.  The commenter also suggested new language for the regulation.

Response:  The Commission will not adopt these suggestions.  As already explained in response to OPM’s comments, the Commission does not believe that creating a new concept or category of paid time wholly divorced from the statutory regime created by Congress in the FSLMRS.  The commenters proposal would perpetuate—simply under a new name—the problems of the current regulation.  Finally, as noted above, the Commission’s final rule clarifies that the FSLMRS is the sole source for official time, which will make reporting requirements easier to administer.

Comment from Individual:  One individual expressed concern that the proposed regulation could deny EEOC-related “official time” to a union representative even if the agency collective bargaining agreement did not allow Chapter 71 official time for statutory processes.  The individual noted that Section 4(a)(v) of EO 13837 and the OPM guidance on EO 13837 issued on July 5, 2018 prohibited official time for union representatives representing employees in a negotiated grievance process pursuant to Chapter 71.  The commenter expressed concern that official time would not be granted where a union representative is not the exclusive representative in the statutory EEOC process.

Response:  As the Commission has stated above, the Commission should extract itself from issues concerning collective bargaining and union officials receiving official time.  Whether a union official can receive official time for any particular “grievance” including EEO proceedings will be a matter for the agency, union, and any applicable executive orders.  Therefore, the commenter’s concern is a matter to be addressed during bargaining, and is not something the EEOC should dictate, hence the rule change.  The rule would make the FSLMRS the sole source of official time for union representatives. 

V.              Comments Opposing the Rule Change and the Commission’s Responses

Comments Regarding the Commission’s Justification for the Rule Change:  Several commenters stated that the Commission had not provided adequate justification for its change to the rule.  One such comment was submitted by some members of the Senate HELP Committee.  These commenters asserted that the Commission “presented no evidence--statistics, data, surveys, or even anecdotes--that federal agencies or unions have expressed a need or even a desire for such clarification, or that this change would lead to any positive outcomes whatsoever.” Several other organizations echoed this sentiment.  Other commenters said that it was not appropriate to involve the FSLMRS in EEO matters.  A few organizations commented that since the Commission engaged in rulemakings in 1987 and 1992 after the FSLMRS was in effect, and the EEOC declined to make its current proposal during either rulemaking, it lacked a reason to revisit the issue.  A group of unions questioned the EEOC’s statement regarding when official time took effect in the federal government, pointing out that official time had existed in some form in the federal government since 1919, largely on an ad hoc basis through executive or administrative fiat.  Yet another commenter, a local union, stated that the rule actually is contrary the intent of Congress in the FSLMRS, pointing in support to two occasions when Congress attempted to amend section 7131(d) in other contexts (in these cases, lobbying), but did not.  The same commenter also stated that the rule did not adequately define “union representative” and alleged that the rule change would prevent union officials from representing non-bargaining unit employees.

Response: In the FSLMRS, Congress has carefully crafted a statutory scheme for union officials to receive official time for their representation of other federal employees. However, the Commission’s current regulation allows union officials serving as representatives in EEO matters to take an additional undefined amount of additional time under EEOC regulations—official time that is beyond amounts negotiated or for which the agency could accurately plan.  As discussed more fully above, several agencies submitted comments confirming the extent to which the Commission’s provision of additional official time disrupts agency operations.  For example, as OPM noted, official time under the regime created by Congress in FSLMRS is unique to union officials.  The Commission’s regulation interferes with balance struck by that regime by allowing union officials to circumvent its limits.  To avoid these consequences, the Commission believes its final rule should provide official time only to those federal employees who as non-union officials do not have another source of official time.  As the VA, OPM, and USDA all noted, the EEOC’s rule change will correct a variety of collateral negative effects related to the EEOC providing a second source for union official time and will allow the agencies to operate more efficiently and better serve the public.

In addition to the justifications discussed in the NPRM, the Commission stated that the proposed change would clarify the backdrop regarding official time upon which unions and agencies collectively bargain.  See 84 FR at 67684.  A prime example is a May 2019 decision from the Federal Service Impasse Panel (FSIP) involving the Social Security Administration (SSA) and the American Federation of Government Employees (AFGE).[1]  See In the Matter of SSA and AFGE, 19 FSIP 019 (2019).  Here, the agency and union, in part, reached an impasse because the agency wanted time spent on EEO matters to count towards the collective bargaining agreement’s official time cap, while the union stated that official time for EEO matters was separate from other official time and the two concepts should not be intermingled.  Id. at 17.  While the FSIP sided with the agency and stated that the union’s concerns that the agency was circumventing EEOC regulations was “misplaced,” it proceeded to state that when the union reaches the cap for official time, including the time it spends on EEO matters, the union could still turn to the EEOC regulation.  Id. at 18.  This real-world example in which union officials were allowed to use the Commission’s regulation to exceed FSLMRS caps on official time not only confirms the Commission’s concerns about the use of its regulation but also illustrates how the lack of clarity on this issue causes confusion amongst unions and agencies—even those tasked with adjudicating these matters.

The Commission believes that detaching its official time regulation from FSLMRS is important to achieve both the clarity and predictability in terms of the use of official time, allowing unions and agencies to bargain against a more certain backdrop.  The Commission disagrees with comments contending that the proposed rule inappropriately involves the FSLMRS in EEO matters.  To the contrary, it is Commission’s current regulation, before this final rule, that inappropriately involves the EEOC in the FLSMRS matter of official time for union officials.  This final rule appropriately disentangles the EEOC from matters left to the FSLMRS.  Furthermore, as the FSIP explained, the FSLMRS is designed to cover official time for EEO proceedings and can adequately do so without the EEOC regulation infringing on its territory. “The FLRA has long held that parties are authorized under 5 U.S.C. § 7131(d) to negotiate all matters concerning official time, including the use of official time to assist unit employees in EEO proceedings.”  Id.  Considering both the FSLMRS and proposed regulation be sufficient independently to ensure federal employee representatives have reasonable official time to perform their duties, the Commission believes the final rule accomplishes its core purposes of providing official time to federal employees who are not eligible for such time under FSLMRS while simultaneously avoiding unnecessary conflicts with the FSLMRS in determining whether union officials can receive official time to represent other employees.

The Commission’s discussion and explanation in the NPRM regarding the reasons it had not previously addressed official time during prior rulemakings explains why the Commission does not agree with several comments on this subject.  See 84 FR at 67684.  As the Commission explained in the NPRM, during prior rulemakings and at other times, the Commission simply “has not expressly addressed the availability of ‘reasonable’ official time to union officials or how the Commission’s official time regulation for EEO proceedings interacts with the FSLMRS.”  Id.  No comments pointed to anything that contradicted or called into question this statement.  Merely because the Commission did not previously address this issue in this or any other way during previous rulemakings does not mean it is inappropriate to do so now.  As already explained, current events have caused renewed attention and interest on official time in the federal government and how official time affects collective bargaining.  See supra at n. 1.  Naturally, this attention on the issue has caused the Commission to focus on how its rule may be causing confusion and problems with implementation of the FSLMRS’s official time provisions.  Similarly, the comments regarding the history of official time in the federal government do not undermine or contradict the Commission’s discussion in the NPRM.  FSLMRS was the first-time official time existed in statute.  Id.  Official time under this regime differed from variations that existed prior, an ad hoc system largely based on administrative discretion, which is what the commenters described.  The potential overlap between the EEOC regulations and the statutory scheme set forth in the FSLMRS requires an analysis of how the EEOC’s grant of official time should interact with the FSLMRS.  The Commission has now done so—both in the NPRM and this final rule.

Several commenters criticized the proposed rule because they believed that it conflicted with Congressional intent regarding the FSLMRS.  But the Commission notes that the text of the FSLMRS unambiguously allows for collective bargaining regarding official time used in EEO proceedings, authority the FSIP has confirmed.  While efforts in Congress to amend the statute in other contexts have fallen short, those failures are irrelevant to this rulemaking.  See Milner v. Department of Navy, 562 U.S. 562, 574 (2011) (stating the courts must use clear statutory text over the consideration of other materials when analyzing a statute).  Regarding commenters concerned about the lack of a formal definition of “union representative.”  The Commission notes that the term “union representative” was not used in the NPRM’s proposed regulatory text or this final rule, so there is no need to define a term not used.   

Regarding the local union’s concerns about union representatives being able to represent non-bargaining unit employees, this is something that unions could attempt to clarify in collective  bargaining.   To the extent this issue cannot be clarified in bargaining, the Commission believes that the number of situations where this issue is likely to arise are so few as to not require explicit treatment in the text of the final rule.

Comments about detrimental effects of rule change:  Several commenters argued that the rule will lead to government inefficiency because union officials may be the most knowledgeable people to whom federal employees can turn for these issues.  According to the commenters, if union officials are less involved, the EEO complaint process will not operate as well.  The union that represents EEOC employees also expressed concerns about the affect the change could have on EEOC operations, including the potential for a larger number of pro se complainants.  Still other commenters said that rule undermines the Commission’s regulations that afford complainants’ right to choose their own representative.  Finally, commenters claimed that the EEOC’s MD-110 already addressed the issue of what constitutes a “reasonable” amount official time.

Response:  Some of theses criticisms of the rule are misleading or inaccurate; others are misplaced.  The Commission’s rule change does nothing to prevent union officials from participating in the complaint process.  The rule only affects the source of official time granted to union officials.  The benefits that many commenters cited regarding the involvement of union officials in the EEO complaint process, assuming arguendo that they are in fact true, are things that unions and agencies can consider in the bargaining process when determining the amount of official time to which agencies and unions will agree.  The Commission declines to credit the unsubstantiated speculation regarding portended impacts the EEOC operations and the number of pro se complainants, the effects the commenters cite are highly speculative.  The Commission again notes that unions may address these and other issues through collective bargaining.

To the extent a union official does not have official time available to represent a complainant, the complainant remains free to choose from a large number of candidates to be his or her representative who can still receive official time under the EEOC regulation.   In addition,  a complainant could choose to retain an attorney at no direct cost through a contingent fee arrangement,[2] or unions could offer representatives who are not using official time.  Furthermore, statistics for the past five fiscal years show that even under the current framework, the overwhelming majority of complainants choose to appear pro se during the EEOC hearing process.[3]  And agency employees, including administrative judges, are well-versed with dealing with pro se complainants,  although the final rule itself does not directly increase the number of pro se complainants because the rule is only changing whether a specific subset of potential representatives are entitled to official time through the EEOC’s regulation and is still leaving many options for representation, both union and non-union.  Complainants will still have numerous options to be represented if they so choose.

Commenters who argued that the proposed rule will prevent employees from selecting a representative of their choice are mistaken.  The Commission is not revising Section 1614.605(a), which provides that a complainant can be represented by an individual of his or her choice.  Moreover, the rule does nothing to govern or limit who complainants choose their representative.  They may choose union officials or non-union employees just as they do today.  The only question will be whether that representative is on official time (i.e., paid by the government).  Even under the rule that existed prior to the issuance of this final rule, representatives were not guaranteed official time or entitled to unlimited amounts of official time.  The Commission’s sub-regulatory guidance explains that a “reasonable” amount of official time is context dependent, varying according to agency policies and workloads.  See MD-110, Chapter 6, VII.C.1.  Thus, clarifying that a union official’s official time will be determined through collective bargaining under the FSLMRS no more limits a complainant’s choice in representatives than the “reasonable” caveat already did in the prior regulation.  With respect to the comments contending that MD-110 adequately addressed the issue of official time availability, to the contrary, MD-110 does not address how the regulation’s grant of official time relates to, or intersects with, the FSLMRS.  MD-110 simply describes in more detail how the “reasonable” standard of the regulation should be administered.  It does not address how the EEOC regulation can improperly serve as a duplicate source for official time for union officials and interfere with agency operations and collective bargaining.  Nor does it even acknowledge that one category of federal employee already has access to official time through the FSLMRS.  As noted above, the Commission believes that its regulation should afford official time to employee representatives who as non-union officials are not otherwise entitled to official time from another source.  The Commission’s regulation should not interfere with the statutory regime Congress designed for official time for union representatives.  As already discussed above, MD-110 does not deal with the overlap of the EEOC’s regulation and the FSLMRS regarding official time for union officials in any way, making this final rule necessary to provide clarity and extract the Commission from intruding on the FSLMRS.

Comments on How the Rule Change Affects Employees:  Many commenters predicted that the rule change would negatively affect workers facing discrimination, such as women in the “#MeToo Era,” people of color, individuals with disabilities, and the LGBTQ community.  Many commenters said the rule change would make it less likely that individuals would come forward with discrimination complaints.  Other commenters said that the rule change would undermine the purpose of Title VII and was contrary to the EEOC’s mission.  A few commenters also stated that the Commission should abandon the rule change due to the COVID-19 pandemic.

Response:  For many of the reasons outlined above as well as those that follow, the Commission rejects these speculative contentions. The Commission’s final rule neither changes nor impacts any of the protections to which federal employees are entitled under anti-discrimination laws, including protections against retaliation. As it has for decades, the Commission will continue vigorously to enforce anti-discrimination laws in the federal sector.  Federal employees will enjoy the same robust and zealous enforcement of anti-discrimination statutes to vindicate their rights under federal law.  Clarifying the source of official time for union officials does not leave federal employees more vulnerable to discrimination.  The final rule leaves unaltered the current regulation’s robust provision of official time for all complainants themselves as well as many other federal employees serving as representatives.  Furthermore, union officials will still have the possibility of receiving official time for work on EEO complaints, if negotiated through collective bargaining.  The concerns of commenters about the final rule somehow causing widespread discrimination or contentions that the rule somehow will preclude or prevent federal employees from coming forward are belied by the fact that there is no equivalent official time provision, both for charging parties or representatives, for private sector employees.  Nevertheless, despite this fact, private sector employees still file over 70,000  charges each fiscal year.[4]  The final rule is entirely consistent with the Commission’s mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace because it will not leave federal employees more vulnerable to discrimination as it has explained at length above.  In addition, in fulfilling its mission, the Commission must ensure that it is faithfully executing all laws of the United States without improperly infringing on another agency’s jurisdiction or other statutory regime.  Furthermore, the rule does not change agencies’ obligations to prevent and eliminate discrimination nor does it prevent the federal government from striving to be a model workplace free of discrimination.

Finally, the COVID-19 pandemic does not justify abandoning the rule.  A pandemic does not stop the need for the Commission to clarify this area, and if anything, it only strengthens the need to provide clarity.  The public is relying on agencies to fulfill their missions perhaps now more than ever.  As explained above, this rule will allow agencies to better serve the public by being able to plan its workforce with more certainty.

Comments about Effects on Unions:  Several commenters contend that proposed rule is anti-union and discriminates against unions and employees serving in official capacities in unions. Other commenters claimed that the rule change could constitute an unfair labor practice (ULP) under 5 U.S.C. 7116.  Several commenters also said that the rule change would weaken unions.

Response: The Commission’s rule neither discriminates against unions nor is it the product of anti-union animus. The Commission is rule is simply clarifying its rule to acknowledge that union officials, unlike any other federal employee, enjoy an additional statutory source of official time under the FSLMRS, and therefore, the FSLMRS should be the sole source of official time for union officials.  The rule eliminates this duplication and allows the EEOC to avoid unnecessary involvement in federal government labor relations.  This rule change is not discriminatory or anti-union, but an acknowledgment of a legal reality and an effort to provide needed clarity to the area.  Furthermore, even assuming arguendo, that the Commission’s rulemaking can even constitute a ULP under any circumstance,[5] this final rule does not constitute a ULP against any labor organization or employee because the rule does not affect any rights under the FSLMRS, encourage or discourage membership in a labor organization, discriminate against any employees for filing a “complaint, affidavit, or petition, or [giving] any information or testimony under [the FSLMRS],” or in any way violate any of the provisions of the ULP statute.  See 5 U.S.C. 7116.  Regarding the conclusory assertion that the Commission’s rule change will somehow weaken unions, the very argument that the Commission’s policies on official time can either strengthen or weaken federal labor unions demonstrates that the Commission ought to extract itself from this confluence of FSLMRS and its own regulations and leave official time for union officials to the FSLMRS.

Comments about Public Hearing:  Several commenters said the EEOC should hold a public hearing or meeting to get stakeholders’ views before deciding on the rule change.

Response:  A public hearing in which the Commission receives additional public testimony is not necessary and would not aid the Commission in its decisional process as it relates to this rule.  The Commission provided the public 120 days to comment on the proposal over two comment periods.  The periods have provided ample opportunities for stakeholders to give their views to the Commission on the proposal, and the Commission received many views from a variety of stakeholders.   As a result of comments received, the Commission has enough information on which to make a determination regarding the final rule and the Commission will not hold a public hearing in which it receives additional comments.

Comments on Constitutional Issues:  Several commenters raised constitutional objections to the Commission’s rule.  Commenters said the change would violate free speech rights, rights to free association, and Fifth Amendment equal protection rights.  Specifically, one union cited to the Supreme Court’s decision in United States v. NTEU to argue that the rule change was unconstitutional.

Response:  The arguments that the Commission’s final rule violates free speech rights are misplaced.  The NTEU case is inapposite.  There, the Court struck down a prohibition on federal employees being compensated by third parties for speeches and articles, even when there was no connection to their official duties.  See United States v. NTEU, 513 U.S. 454, 457 (1995).  The Court reasoned that the prohibition imposed a significant burden on federal employees engaging in expressive conduct outside of the workplace, much of which had nothing to do with their jobs as federal employees.  Id. at 468-70.  Here, nothing in the Commission’s final rule prevents union officials from speaking out against employment discrimination or any other matter.  The only change is that the EEOC’s regulation will not provide a direct source for official time for  union officials, while still allowing for the possibility that union officials can receive official time through collective bargaining.  Rather than affecting whether employees can engage in speech outside the workplace, as was the issue in NTEU, the Commission’s final rule only affects whether employees can engage in these activities while being paid by the government, and even then, the Commission’s rule does not foreclose the possibility.[6]  Ultimately, the final rule does not prohibit union officials from doing anything.  

To the extent that any union is arguing that it has the right to have its speech subsidized by third parties who may not share the same views or be interested in engaging in the speech, the Supreme Court has recently rejected this notion.  See Janus v. American Federation of State, County, and Mun. Employees, 138 S.Ct. 2448, 2478 (2018).[7] 

Furthermore, the rule change does not violate free association rights.  The Commission’s final rule does not prevent any individual from joining a union or serving in an official capacity for a union.  Congress has already given union officials a mechanism for receiving official time for their representation of employees, the FSLMRS.  The Commission’s final rule simply clarifies that the FSLMRS will serve as the source of official time for these individuals, while the EEOC’s regulation will serve to fill the gaps for employees without another source of official time.  Similarly, as stated above, the final rule does not discriminate against union officials, but simply acknowledges the law as it exists, and therefore, the rule does not violate any rights guaranteed by the Fifth Amendment’s Equal Protection Clause.

Comments on Cost-Benefit Analysis and Executive Order 12866:  Several commenters said that the Commission failed to consider the costs of its rule change.  One commenter said the EEOC failed to consider the costs and benefits as required by Executive Order 12866.  Furthermore, the same commenter said that the rule is a “significant regulatory action” under Executive Order 12866 because it “‘[r]aise[s] novel legal or policy issues arising out of legal mandates.’”

Response:  The Commission’s final rule will not impose any direct significant costs on agencies, unions, or individual employees since the rule only clarifies that collective bargaining is the source of official time for one segment of representatives.  Any resulting costs from increased collective bargaining will be de minimis because unions and agencies are already engaged in collective bargaining over a myriad of issues at any given time.  Should union officials not receive as much official time through collective bargaining as they received through the EEOC regulations, several factors and choices by relevant parties will determine whether these parties incur increased costs.  Whether individual federal employees incur increased costs may depend on if they choose to hire an attorney who will charge based on billable hours, but there will also be options available at low or no cost, such as using another employee who is eligible for official time, hiring an attorney on a contingency fee basis, or proceeding pro se, as a majority of complainants do currently.  Whether unions incur additional costs depends on if they choose to expend resources, such as hiring attorneys, to provide representation to employees for EEO proceedings in the absence of official time.  Thus, whether costs are incurred is largely based on choices parties make, both at the collective bargaining table and in choosing a representative.  Furthermore, should the rule change result in less official time, any costs associated with less official time will be nearly proportionally counteracted by benefits that agencies and taxpayers would receive from federal employees spending less time performing non-agency duties on official time, and instead using that time to perform their agency job duties.  Thus, any costs incurred will largely be balanced by agencies having to expend fewer resources on official time.  In response to the comments regarding Executive Order 12866, the Commission has adjusted the entry in the “Regulatory Procedures” section below to address the concerns the commenter raised.

Comments on Second Comment Period:  Some members of the House of Representatives and National Council of EEOC Locals, No. 216, AFGE/AFL-CIO criticized the second comment period, alleging that it occurred “for the purpose of soliciting comments in support of the rule change that did not materialize on their own the first time.”  The AFGE also challenged the Commission’s tally of first round comments, alleging that it was “confident that this understates the true number of comments received by the Commission.”

Response:  The Commission reopened the comment period to allow all stakeholders (those for, against, and neutral) additional time to comment on the Commission’s proposal because “[d]ue to the high level of interest on the topic, the Commission want[ed] to ensure that it [gave] all interested stakeholders ample opportunity to comment.”  85 FR 33049    This would ensure that the Commission had a full airing of views before it decided on the final rule.  If the Commission only wanted to add information to support its proposal, in theory, it could have done so without reopening the comment period.  See Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1402 (9th Cir. 1995) (“An agency can add material to the administrative record after the close of a public comment period when that material is a response to the comments.”).  Instead, the Commission chose to allow all interested parties additional time to give their views on the proposal.

Regarding the AFGE’s contention that the Commission undercounted first round comments, this is entirely contradicted by the evidence.  The public record demonstrates that the Commission received 1,829 timely comments during the first comment period.  These are the number of comments that the agency received through the official electronic comment portal.   One comment included one union form letter with 5,003 individuals joining the form letter that was recorded as one comment because that is how the Commission received it.

Comments on Response to Congressional Inquiries:  Members of the House Committee on Education and Labor expressed concern that Commission responses to requests for documents and information regarding the proposed rule change have been inadequate.  This includes “requests for communications, studies, analyses, memoranda, and opinions concerning the potential effects of the proposed rule on other laws, on complainants, and on the EEOC’s workload.”

Response:  The Commission has provided all relevant information in response to the correspondence referenced in the comment through the appropriate channels for communications with congressional committees.

VI.           Determination

Having reviewed and considered the comments received, and as explained above, the Commission has determined that it will adopt language for the final rule that is identical to what it proposed in the NPRM.  While there are commenters who are opposed to this change, these commenters failed to establish that the Commission’s justification for the change was flawed from a legal or policy basis and failed to provide convincing reasons for why the Commission should abandon its proposal.  To the contrary, agencies further solidified the Commission’s justification for the change by demonstrating: a) official time for union officials should be left to the FSLMRS, which Congress carefully designed to govern the complex issues arising in labor relations in the federal government, b) that having the EEOC regulations serve as a separate source of official times is disruptive to collective bargaining and makes it difficult for agencies to plan how they will allocate resources, and c) the Commission’s change will have tangible benefits by allowing agencies to ensure that they have workers available to serve the public and accomplish the agency’s mission.  Accordingly, the Commission believes that this final rule is necessary to allow the FSLMRS to serve its proper role of managing official time for union officials and to provide clarity for unions and agencies regarding what aspects of official time need to be handled during collective bargaining.  This change will bring about more certainty to agency operations and allow agencies to better serve the public.

VII.         Regulatory Procedures

Executive Order 12866

The Commission has complied with the principles in section 1(b) of EO 12866, Regulatory Planning and Review.  While in the NPRM the Commission stated this was not a “significant regulatory action” under section 3(f) of the Order, upon further review and in light of comments received, the Commission believes that this is a “significant regulatory action.”  Of the four criteria for a “significant regulatory action” under EO 12866, the only criterion that this final rule could possibly meet is that it raises novel legal or policy issues arising out of legal mandates or the President’s priorities.  The final rule does not have an annual effect of $100 million or more on the economy.  As explained above, the rule itself does not have a direct significant cost on anyone.  Furthermore, after the rule is final and should the failure to reach agreement on the issue through collective bargaining result in less official time for union representatives than they previously had, any associated costs as a result will only come through a series of choices from affected individuals or unions.  In addition, any associated costs will be balanced almost directly by cost savings for agencies and taxpayers if they have federal employees using less official time to conduct non-agency business.  Agencies could see cost savings when employees are spending more of their time on their assigned agency work related either directly or indirectly to accomplishing the agency’s mission.  

However, the final rule also raises novel legal or policy issues arising out of legal mandates or the President’s priorities.  The President has focused on official time in the federal workforce, as demonstrated by EO 13837.  While the Commission’s decision is based on the plain language of the FSLMRS and as discussed above, the FLRA has long recognized that FSLMRS’s provisions are intertwined with EEO proceedings, the Commission acknowledges that this is “significant regulatory action” under EO 12866 and will send its final rule to the Office of Information and Regulatory Affairs in accordance with section 6(a)(3)(B) of EO 12866.

Executive Order 13771

This final rule is not an EO 13771 regulatory action because it imposes no cost.  Furthermore, it is regulation “related to agency organization, management or personnel” and is therefore not a “regulation” or “rule” under EO 13771.

Paperwork Reduction Act

This final rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

The Commission certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities because it applies exclusively to employees and agencies of the federal government and does not impose a burden on any business entities.  For this reason, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments.  Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

While the Commission believes the final rule is either a “rule relating to agency management or personnel” or a “rule of agency organization … that does not substantially affect the rights or obligations of non-agency parties” and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996), it will still follow the reporting requirements of 5 U.S.C. 801 as a courtesy.  This is not a “major rule” as the term is defined in 5 U.S.C. 804(2).

List of Subjects in 29 CFR Part 1614

Administrative practice and procedure, Equal Employment Opportunity

For the Commission.

Dated: _______ ______, 2020

Janet Dhillon

Chair

For the reasons set forth in the preamble, the Commission hereby amends Part 1614 as follows:

PART 1614 – FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY [AMENDED]

1.     The authority citation for Part 1614 continues to read as follows:

Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR 1954-1958 Comp., p.306; E.O. 11478, 3 CFR, 1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No 1 of 1978, 3 CFR, 1978 Comp., p. 321.

2.     In §1614.605 amend paragraph (b) by adding a sentence at the end of the paragraph to read as follows:

§ 1614.605 Representation and official time

* * * * 

(b) * * * This paragraph does not apply to a representative if he or she serves as an officer, steward, or otherwise in an official capacity in a labor organization that is the exclusive representative of employees in an appropriate unit at the agency under the relevant provisions of the Federal Service Labor-Management Relations Statute (FSLMRS).  The Commission will leave whether such a representative can receive official time to the FSLMRS and the bargaining agreements between the agency and relevant labor organization.

 

[1] At the time of its issuance, the FSIP decision generated coverage from press that covers issues involving the management of the federal government.  See, e.g., Erich Wagner, Impasse Panel Guts Telework, Official Time for Employees at Social Security Administration, Government Executive (June 3, 2019) https://www.govexec.com/management/2019/06/impasses-panel-guts-telework-official-time-employees-social-security-administration/157448/; Nicole Orgysko, Impasse Panel Weighs in on SSA Contract Dispute with Its Union, Federal News Network (June 5, 2019), https://federalnewsnetwork.com/unions/2019/06/impasse-panel-weighs-in-on-ssa-contract-dispute-with-its-union/.  Other news articles covered how official time negotiations have affected bargaining.  See Louis C. LaBrecque, Telework, ‘Official Time’ Disputes Stall VA Labor Talks, Bloomberg Law (Aug. 1, 2019), https://news.bloomberglaw.com/daily-labor-report/telework-union-work-time-stall-va-workers-contract-talks.

[2] Federal employees who are prevailing parties in most employment discrimination claims are eligible to receive an award of attorney fees.  See 42 U.S.C. 2000e-16(d).

[3] The chart below shows the statistics for representatives at the EEOC hearing level.  Please note, the total in the “Complainant Represented” column does not necessarily match the sum of the next two columns because of multiple representative situations and the EEOC’s system does not capture whether the representative is a union official.

 

Complainant Represented

Pro Se

Total
Resolutions

 

Complainant
Represented

Legal
Representative

Non-Legal
Representative

FY2015

1,434

519

929

4,214

5,648

FY2016

2,255

973

1,312

4,536

6,791

FY2017

2,523

1,177

1,380

4,144

6,667

FY2018

3,598

1,687

1,985

5,052

8,650

FY2019

4,303

2,144

2,262

6,311

10,614

[5] It would be impossible for the FLRA, the agency designated with determining and adjudicating ULPs, to even find that the EEOC’s regulation constitutes a ULP because there is no evidence that “Congress intended the FLRA to sit in review of other agencies' regulations.”  AFGE v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986). 

[6] The First Amendment’s free speech guarantee does not apply to speech of public employees in all contexts, and the protection is generally confined to when an employee is engaging in speech as a citizen on a matter of public concern.  See Garcetti v. Ceballos, 547 U.S. 410, 420-21 (2006).

[7] First Amendment rights of public employees are often analyzed under the balancing test the Supreme Court developed in Pickering v. Board of Education.  See 391 U.S. 563, 568 (1968) (stating that courts must balance the interest of the employee in speaking in his or her capacity as a citizen on matters of public concern and the interests of the government as an employer in efficient government services). Similar to what the Court noted in Janus, should First Amendment protections need to be analyzed here, the Pickering test is likely not a suitable framework in this context.  See Janus, 138 S.Ct. at 2472.  However, assuming arguendo that the First Amendment rights of employees are implicated by the final rule and the Pickering test applies, the government’s interest in ensuring that labor relations issues are dealt with by the statutory mechanisms Congress designed in the FSLMRS would outweigh the minimal First Amendment implications of clarifying the source for union officials to receive official time when representing employees in EEO proceedings.