Government Efficiency and Returning to Office Work
Since November, there has been a deluge of news reports regarding government efficiency, government spending (targeting inappropriate government spending), and the impact of telework on the federal government’s efficiency. Many of these reports highlight the negative impact of federal employees working at home with remote supervision (if any) rather than in an office.
While politics and government actions often take a long time to become effective, initial efforts to change how the federal government operates have been on a fast track. Donald Trump will not become president until January 20th. As a precursor to his administration taking office, Senator Marsha Blackburn (R-TN) and Representative Claudia Tenney (R-N.Y.) have introduced a package of bills known as the “DOGE Acts.”
Federal Employees Must Return to Work in an Office or Will Be Dismissed
Related to the DOGE Acts, President Trump said on December 16, 2024, in his first press conference since he was elected: “If people don’t come back to work, come back into the office, they’re going to be dismissed.”
He also blamed the Biden administration for what he said was a “terrible” and “ridiculous” agreement with unions allowing tens of thousands of federal workers to continue working at home.
The president-elect said, “it was like a gift to a union, and we’re going to obviously be in court to stop it.”
While requiring federal employees to return to working in an office has been publicized since the election in November, this is the first statement by the president-elect on this topic. The administration has criticized telework for federal employees and is pushing for federal employees workers to return to their offices five days a week.
This is a follow-up to statements made by Elon Musk and Vivek Ramaswamy in a recent column in the Wall Street Journal. They wrote:
“Requiring federal employees to come to the office five days a week would result in a wave of voluntary terminations that we welcome: If federal employees don’t want to show up, American taxpayers shouldn’t pay them for the Covid-era privilege of staying home.
Introducing the DOGE Acts
A press release states that these bills intend to “hold the federal government accountable for managing taxpayer dollars. The DOGE Acts coincide with President-elect Trump’s recently announced Department of Government Efficiency (DOGE), which will be led by entrepreneurs Elon Musk and Vivek Ramaswamy.”
One of these bills is the Stopping Home Office Work’s Unproductive Problems (SHOW UP) Act. It would require federal agencies to return to pre-pandemic telework levels within 30 days. It would also prevent federal agencies from permanently expanding telework without submitting to Congress telework plans certified by the Office of Personnel Management (OPM). This legislation passed the House last year.
What the Show Up Act Requires
The SHOW UP Act requires:
- Federal agencies to return to 2019 (December 31, 2019 benchmark) pre-pandemic telework levels within 30 days;
- Federal agencies to complete and submit to Congress studies within six months detailing how pandemic-era telework levels impacted their missions—including adverse effects on customer service, network security, and costs for real property and locality pay; and
- Prevents federal agencies from permanently expanding telework without submitting to Congress telework plans certified by the Office of Personnel Management (OPM) that detail how remote work policies will:
- Substantially improve agency mission-performance;
- Substantially lower agency costs for real property and locality pay;
- Ensure security for agency networks, data and records;
- Accelerate the dispersal of federal jobs nationwide and outside of Washington, D.C.
Impact on Federal Employees: Office Work and Locality Pay
The primary purpose of this legislation is to limit telework by federal employees and require them to return to work in an office environment.
Agencies would be required to report on the impact of working at home by agency employees during the Covid pandemic including “any adverse impacts of that expansion on the performance by the agency of the mission of the agency, including the performance of customer service by the agency….”
Agencies would also be required to report on paying higher rates of locality pay to teleworking employees due to incorrectly classifying employees as teleworkers rather than remote workers.
Union Contracts and the “Show Up” Act
The American Federation of Government Employees (AFGE) recently signed an agreement with the Biden administration’s Social Security Administration to set current levels of telework at the agency through 2029. The move would reportedly impact about 42,000 federal workers.
The agreement’s purpose is to allow bargaining unit employees to continue with remote work until the agreed contract expires in five years—after the Trump administration. The agreement was signed by SSA Commissioner Martin O’Malley just before he stepped down to run for Democratic National Committee chair.
Depending on their jobs at the Social Security Administration, AFGE members currently report to the office between two and five days a week. The union represents 42,000 workers at the agency, which employs almost 60,000 people.
This same approach will likely be used in other agencies by other Biden political appointees still in office and federal employee unions to try to protect the ability of bargaining unit employees to work at home instead of going into an office every day.
How will this work out in practice? If a union contract is in effect that guarantees employees can work at home under certain conditions, and Congress passes a law requiring employees to go back to work in an office, what will happen?
Challenges to the Show Up Act
If the Show Up Act becomes law, federal agencies will be required to implement its provisions “Not later than 30 days after the date of enactment of this Act….”
Legal challenges will be filed once an agency takes action to restrict telework under the Show Up Act. The Federal Labor Relations Authority (FLRA) would most likely be the agency to receive challenges to the Act from unions.
The FLRA was created by the Civil Service Reform Act of 1978 (CSRA). This federal agency resolves or decides on unfair labor practice (ULP) allegations filed by unions. The ability of an agency to impose the requirements of the Show Up Act will likely be governed by the provisions of the CSRA.
Before an agency implements a new law, it must bargain on how it will be implemented.
Federal law overrides the requirements of a collective bargaining agreement. However, the passage of a new law does not eliminate an agency’s responsibility to the union representing its employees even when a new law has been passed.
In this instance, an agency will likely receive a response from a union that they will not agree to quickly remove the telework provisions in a contract that gives employees the right to work at home or only report to the office periodically. At a minimum, the union will likely refuse to agree to an agency’s proposal severely restricing options of working at home.
How The Show Up Act May Be Implemented if Passed by Congress
An agency can take several actions to implement the law. As a start, it can require that any employee not in a bargaining unit represented by a union has to work in the office. That would include all supervisors and managers as the contract does not apply to them.
When that occurs, and these people start working in an office (if they have not been doing so), chances are the agency will determine at least some of the employees not going to work in the office will have to work in the office to successfully perform their job duties. If the reasons are documented and the agency can show the employee’s performance is not adequate while working at home, an employee who refuses to report to work as ordered will do so with the possibility of being fired for not reporting to work.
With a new emphasis on reducing government spending and waste of government resources, agencies are likely to start monitoring the performance of employees working at home. In instances where the employee has not been performing adequately, action can be taken against the employee for non-performance of duties.
One example is this case that went before the Federal Service Impasses Panel (FSIP) when an agency and a union bargained telework issues. The FSIP resolves contract disputes between an agency and a union when the parties have not reached an agreement. The FSIP will not always issue the same decision on an issue; it will depend on the particular circumstances.
The FLRA has also issued a decision finding that an agency that did not follow the contract in denying an employee’s request to continue working under a telework agreement. While these cases differ from what agencies are likely to encounter if the Show Up Act passes, the cases do demonstrate it is not an automatic win for the agency when it tries to modify an agreement regarding telework as has previously been agreed upon in a labor agreement.
In other cases, the FLRA has upheld a union argument that when a new law is passed, the agency must still negotiate on how the law will be implemented.
Case decisions illustrate that while agencies have the authority to implement new laws, they have to do so in conjunction with existing collective bargaining agreements or negotiate the changes over conflicting provisions. The decisions emphasize the importance of the duty to bargain over the impact and implementation of new legislation unless it explicitly removes those areas from negotiability.
Locality Pay and the Show Up Act
Another issue that will create problems involves how locality pay works with teleworking. The Show Up Act intends to: “substantially lower the costs of the agency attributable to paying locality pay to agency personnel working from locations outside the pay locality of their position’s official worksite….”
One Senator previously identified examples of this problem. In one case, the investigative report found that 80% of the 25 remote employees identified in a study had an incorrect duty station and were being paid a higher locality pay amount.
How the Show Up Act will be interpreted and applied with regard to telework and locality pay in agencies may depend on how the Office of Personnel Management instructs agencies to proceed. Contract language will probably differ, and case decisions will vary depending on that language and how an agency has elected to implement its requirements.
There is little doubt that if the Show Up Act becomes law, there will quickly be legal challenges when an agency implements the law. It is not clear the ultimate impact the law would have on agencies.
Some federal employees will find themselves out of a job when they do not report to work in an office as directed by an agency or are not satisfactorily performing their jobs as required. Labor and employee relations professionals (including the lawyers) will be spending time handling the challenges that will go before the FLRA and the courts. Agencies will try to untangle situations created by how telework has been implemented.
Locality pay will also have to be addressed as part of this issue. Some employees have been working at home, outside of the locality pay area where the agency is located, and receiving higher pay authorized by the locality pay system while working outside that locality pay area.
Senator Joni Ernst (R-IA) has previously identified this problem and her work led to investigations highlighting problems in some agencies. These examples probably led to the Show Up Act including provisions to restrict locality pay for some teleworking employees.
Summary
The recent election results, the rapid expansion of telework, the rapid expansion of locality pay in the government, and some of the resulting problems already identified have led to a perfect situation for conflict. The Show Up Act was drafted in response to some of these issues. It does not explain how to undo the problems or how agencies will go about implementing the bill should it become law.
We can look forward to new case law arising and to changes in the federal government employment structure if the DOGE Acts and the Show Up Act in particular pass into law.
