EEOC withdraws Trump-era proposal cancelling official time for unions reps

The Equal Employment Opportunity Commission closed a controversial chapter of its history Friday when it formally withdrew a regulatory proposal that would have barred federal employees who are union officials from accessing official time to help their colleagues pursue discrimination complaints.

The saga dates back to 2019, when the EEOC, then under Republican control, first proposed the rule. For decades, the agency has guaranteed official time—time in which a worker is paid for something other than their official duties—to federal employees working on their own or their colleagues’ discrimination claims, a policy intended to help victims feel more comfortable and better navigate a complicated adjudication process.

In the 2019 proposal, agency officials argued that, because the legal basis for EEO procedures predated the 1978 Civil Service Reform Act, which established official time as a practice in federal sector collective bargaining, EEOC should defer to individual agencies’ collective bargaining agreements regarding whether official time should be provided

The result, union leaders said at the time, would be that no union official would be able to use official time, since their contracts with management don’t address EEO procedures, since they had heretofore been guaranteed by the commission itself. But EEOC would continue to guarantee official time to non-union federal workers.

In January 2021, the EEOC voted 3-2 along party lines to finalize the plan and issue a final rule implementing it, despite receiving 11,000 submissions during the proposal’s 120-day comment period, the vast majority opposed to the idea. But a month later, the rule was blocked from publication and implementation as part of the Biden administration’s review of so-called “midnight regulations” from the prior president’s final days in office.

In a notice published in the Federal Register Friday, EEOC officials officially withdrew the proposal, and offered a stinging rebuke to its former leadership. The document chided officials for failing to provide evidence that agencies or unions had been confused or come into conflict over the use of official time for discrimination cases, and it said the decision would have made it harder for victims of workplace discrimination to pursue justice.

“Part of the mission of the EEOC is to ensure that laws that protect federal employees from workplace discrimination are fully enforced,” the agency wrote. “This includes the guarantee that a federal EEO complainant is entitled to a representative of their choice and that both the complainant and the representative, if a coworker, are authorized to use official time when pursuing the complaint. Singling out union representatives as the only federal employees ineligible for using official time to assist EEO complainants undermines this mission. It creates an obstacle to securing competent representation, making it harder for complainants to effectively pursue their EEO complaints.”

The withdrawal notice has practical implications. If former President Trump wins the election this November, EEOC would be required to restart the rulemaking process on this issue from scratch with a new notice of proposed rulemaking, followed by a period of public comment, before attempting to implement the initiative anew.