In December 2019, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule clarifying official time provisions for federal employees working in an official capacity for a union.
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.
Normally, EEOC would not be issuing rules impacting federal sector employee unions. This rule, however, impacts the role of unions in the processing of EEO cases in agencies.
The rule proposed by EEOC addressed the policy of a federal agency providing time off work for a union representative representing a federal employee when filing an EEO.
EEOC Clarifies Its Policy
The new rule clarifies EEOC policy that official time does not apply to representatives working in an official capacity in a union that is the exclusive representative of federal employees.
EEOC wrote that the labor relations statute articulates the best policy for determining official time use when acting for a union. EEOC noted in its public notice it does not want its regulations to undermine this approach.
While the initial rule was proposed in December 2019, the final rule was not issued until January 2021.
There was obviously an organized effort proposing the change from federal unions. According to the EEOC, “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.”
Final Decision by EEOC
The EEOC determined that “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.”
It also noted in its final decision that “agencies further solidified the Commission’s justification for the change….” EEOC wrote that agencies demonstrated:
- official time for union officials should be left to the FSLMRS, designed by Congress to govern the complex federal labor relations issues.
- EEOC regulations as a separate source of official time disrupt collective bargaining making it difficult for agencies to plan how to allocate resources; and
- EEOC’s change has tangible benefits of allowing agencies to ensure employees are available to serve the public and accomplish the agency’s mission instead of having more employees engaged in internal agency matters.
In short, the EEOC concluded, “This change will bring about more certainty to agency operations and allow agencies to better serve the public.”
Origin of Providing Unions’ Official Time for EEO
The previous EEOC regulation giving federal employee unions was taken from the Civil Service Commission (CSC) requirements. The Civil Service Commission was the predecessor to the Civil Service Commission established in 1978. When the CSC provided official time to unions, Congress had not passed the Federal Service Labor-Management Relations Statute. The labor relations statute was passed in 1978.
The new EEOC rule excludes union representatives from an automatic grant of reasonable official time for EEO proceedings. As noted in the initial proposal from EEOC and its final decision, the agency concluded the best policy approach is to leave the determination of whether a union official receives official time to be determined under the labor relations statute.
In other words, if a union wants to use official time to represent federal employees in an EEO case, they will have to negotiate that extra time in negotiating a collective bargaining agreement.
In issuing the final rule, EEOC noted that it received a comment letter opposing the new rule from 185 members of the House of Representatives. Obviously, Democrats in Congress generally support providing more benefits for federal employee unions and that is the case in this instance.
Under the Biden administration, the EEOC could issue a proposed rule to modify the recent change and it is likely that will be done.