A Union and the EEOC Have Reached a Settlement Over the Agency’s Failure to Negotiate Office Reentry

This story has been updated on Dec. 5 at 10 a.m. to include comment from agency management.

The Equal Employment Opportunity Commission and the American Federation of Government Employees last week reached a settlement agreement to resolve unfair labor practice complaints stemming from the agency’s failure to negotiate with the union over its return to office procedures earlier this year.

Last May, as EEOC and AFGE Council 216, which represents workers at the agency that investigates claims of workplace discrimination, were in the midst of negotiating a memorandum of understanding governing how employees would return to physical work sites, management cut off negotiations and unilaterally implemented its own reentry plan.

In response, AFGE filed an unfair labor practice complaint, which the Federal Labor Relations Authority substantiated in August. The FLRA set a trial date for February 2023, but in the meantime, instructed the parties to enter mediation through its recently reconstituted Collaboration and Alternative Dispute Resolution Office, ultimately leading to last week’s agreement.

AFGE Council 216 President Rachel Shonfield said that although she’s happy with the result, the process to reach the agreement was “frustrating,” because many of the difficulties in negotiations stemmed from trying to fix processes that could have been more easily addressed prior to reentry. She noted that agency-initiated inspections of offices prior to reentry were done haphazardly, at least in part because the parties had not finished ironing out the details of how those inspections should occur or how the agency should remediate issues found during the process prior to the end of negotiations in May.

“One of the things that made this complicated and difficult was trying to figure out how to retroactively fix problems that could have been cured on the front end,” she said. “It would have made a lot more sense to have a [memorandum of understanding] on office safety in May, prior to reentry, but we spent an immense amount of time finally banging out the safety provisions in this [new memorandum], which is in keeping with our priorities of safety and updating workplace flexibilities, which are both a matter of safety as well as keeping up with other agencies.”

In a statement, EEOC Chairwoman Charlotte Burrows lauded the settlement.

“I am pleased that we have an agreement with the union and look forward to our continued partnership working to advance equal employment opportunities in the workplace," she said.

In addition to implementing additional safety measures, both related to COVID-19 as well as ensuring agency offices are secure, the settlement agreement expands some workplace flexibilities, and ensures that they do not sunset until at least next spring.

EEOC’s previous reentry plan was slated to discontinue those flexibilities at the end of the year, barring a decision to extend them further. Employees, who until this point were expected to report to agency offices twice per week, now only have to report to their traditional work sites three times per pay period. The agency also extended until next spring the use of “maxi-flex” hours, which expand the hours in which employees can do their job duties earlier in the morning and later in the evening.

Shonfield said the expansion of flexible hours is an example of a policy that benefits both employees and members of the public, much like EEOC’s popular virtual mediation option.

“We had a very successful maxi-flex program with broader start and stop times during the pandemic,” she said. “We found that was also good for the public, since not everyone works bankers’ hours. But until the agreement, it was just getting extended in dribs and drabs of 30-day extensions, so this MOU sets it in place until at least May 1.”

In the agreement, EEOC also committed to a timetable for proposing a remote work policy for some employees for the parties to bargain over.

“[Management] previously indicated they wanted to have [a remote work policy], but this is months later and there’s been no sighting of it yet,” Shonfield said. “This creates some timeframes for the agency to provide a plan that we can negotiate. That’s a positive for both sides, because it’s keeping us in the running with other agencies for retention purposes, so people don’t agency hop.”

Shonfield said she hopes this settlement can serve as a foundation upon which the union and agency can rebuild their relationship and work collaboratively moving forward. She stressed that employees want to be able to serve the public safely, and through whatever manner—in person or virtually—people with business before the EEOC are most comfortable.

“Our workforce jumped into this unknown phenomena of a pandemic and working remotely and never stopped serving the American people,” she said. “This [memorandum of understanding] gives us the opportunity to keep serving the public even better, because we can add what we’ve learned from the lessons of working remotely during COVID to how we worked in the past in the office, and not just turn our back on things that worked well [during the pandemic].”