EEOC Cancels Official Time for Union Reps Across Government

Members of the federal agency tasked with eliminating workplace discrimination voted 3-2 along party lines Thursday to strip union federal employees of their right to official time to work on discrimination complaints, undoing nearly 50 years of precedent.

The Equal Employment Opportunity Commission guarantees official time to federal employees working on their colleagues’ discrimination claims, a policy intended to help victims feel more comfortable and navigate a complicated and difficult adjudication process.

The rule change, which was first reported by Government Executive, would end that practice, but only for union officials. Instead, if accusers enlist a union official to serve as their representative in EEOC proceedings, the union official’s use of official time would be subject to the rules and time limits in their agency’s collective bargaining agreement. But if employees select a non-union official to represent them, they still will receive EEOC-guaranteed official time.

The rule, officially proposed in December 2019, has been widely opposed by unions, civil rights groups, nearly 200 lawmakers and former EEOC officials, who argue that while the measure appears to be an effort to sideline labor groups, it in fact will deprive victims of discrimination of effective representation. During the rule’s 120-day comment period, the EEOC received around 11,000 submissions, the vast majority of which were opposed to the measure. Within the last week, the agency received another 1,200 emails on the issue.

Despite the voluminous comments in opposition to the regulation, which Republican EEOC members discounted as a “letter-writing campaign,” the final rule approved by the commission contains virtually no revisions, save for a line asserting that it is not a “major rule” that would be subject to the Congressional Review Act. That addition, which opponents say has no legal force, was circulated to EEOC members on Wednesday afternoon, after it was projected that Democrats would take control of the Senate following the Georgia runoff elections.

EEOC Chairwoman Janet Dhillon said that the change is necessary because official time as provided by the EEOC is a “duplicative” source of official time for union officials, and that the existing regulations encroach on the federal labor management relations statute, which states that unions and agencies should negotiate over how much official time is “reasonable.”

“[After the passage of the 1978 Civil Service Reform Act], the EEOC never amended its regulations to account for the separate source of official time for employees,” Dhillon said. “This ends the unnecessary entanglement with [that statute] by eliminating EEOC’s regulation as a duplicative source of official time for union officials.”

But Democratic EEOC Member Charlotte Burrows said that reading misunderstands Congress’ intent in passing the Civil Service Reform Act, as well as how EEOC’s regulations interact with the law.

“Congress was fully aware that a separate category of official time existed when it addressed it for union matters,” she said. “There’s no evidence that Congress intended that to be the sole source of official time for victims of workplace discrimination. And the EEOC issued regulations on official time after the issuance of the [Civil Service Reform Act], so it was fully aware therefore that the Civil Service Commission had provided for official time prior to that statute, and it addressed official time in a collective bargaining context when it elected not to modify this rule.”

EEOC Vice Chairman Keith Sonderling said he supported the rule, citing comments submitted by federal agencies saying that the change would make their operations more efficient and make it easier to perform workforce planning.

“I believe this clarification will provide greater clarity in negotiating official time in bargaining and ensure that enough workers are available to serve the public,” Sonderling said. “The Veterans Affairs Department stated that existing regulations make it difficult to determine the aggregate amount of time staff are expected to perform agency business. This will make it easier for the VA to manage its workforce and provide needed care to veterans.”

A total of three agencies submitted comments in favor of the regulation: the Veterans Affairs Department, the Agriculture Department and the Office of Personnel Management. But the Defense Department suggested that instead, the EEOC could simply rename its official time to be “EEO time” to remove any confusion over official time for EEO complaints versus official time for union representational matters.

GOP Commissioner Andrea Lucas discounted the idea that union officials would no longer be able to work on their colleagues’ discrimination complaints.

“I disagree with my Democrat colleagues that this will prevent union officials from working on EEO cases by requiring them to use official time as negotiated in the collective bargaining process,” Lucas said. “If they wish to have it, they have the full power to bargain for that.”

Over the course of the Trump administration, agency leaders have sought to severely curtail unions’ ability to use official time, and a 2018 executive order stipulated that union representatives may only spend 25% of their working hours on official time. Hardball tactics by management, which in some cases have been found to be illegal by independent adjudicators, have led to the Federal Service Impasses Panel issuing draconian limits on official time, sometimes even more strict than the proposals sought by agency leadership.

Burrows and the other Democratic commissioner, Jocelyn Samuels, sought to amend the rule to provide time for agencies and unions to negotiate how to include EEOC-based official time into their collective bargaining agreements before the change takes effect. But without offering a single word of rebuttal, the three Republican members voted the change down.

American Federation of Government Employees Policy Director Jacque Simon called the EEOC’s decision to implement the rule less than two weeks before President-elect Biden’s inauguration “shameful.”

“Yesterday’s meeting was surreal, almost,” she said. “They were all very somber about the actions at the Capitol on the day before and deploring those actions, and then they proceeded to continue to carry out the dirty work of the Trump administration without any qualms or regard for anything that had been said by members of the public.”

Simon said her union will push both the Biden administration and members of Congress to roll back the rule change either administratively or via the Congressional Review Act. But in the meantime, the EEOC’s decision will have a chilling effect on discrimination victims in the federal government.

“The union representative is somebody that’s been trained to represent on EEO matters, who has experience on EEO matters and is by definition somebody who is respected by coworkers and elected to represent on all matters by their coworkers,” she said. “To be deprived of that person, who can you trust? Who is the trusted leader among your coworkers who you can tell a difficult story to and get good advice, advice you can rely on and trust, who you know will meet the deadlines and understand the administrative procedures one has to go through in order to file a complaint? You’re left with nothing.”

Before the final vote, Burrows said the rule is antithetical to both the mission of the EEOC and the 1964 Civil Rights Act, which established the agency, all in the name of union busting.

“We have seen what partisan overreach looks like in the ugliest possible way at the U.S. Capitol yesterday, and I do not understand why we are doing this now,” Burrows said. “[In] the days when they created, considered and debated the 1964 [Civil Rights] Act that created this agency, there was a right side and a wrong side of history. This is on the wrong side. Those people who filibustered that bill, they are remembered for that. Supporting this proposal will be equally ill regarded, and I am very saddened that we find ourselves doing this now.”