EEOC Cancels Official Time for Union Reps Despite Heavy Pushback

The Equal Employment Opportunity Commission (EEOC) has canceled official time for union representatives across government in a rule introduced in December 2019. The EEOC, which is responsible for eliminating workplace discrimination, voted 3-2 along party lines to strip union officials from using official time to work on colleagues’ discrimination complaints.

EEOC officials also tried to exempt the regulation from the Congressional Review Act, which is an oversight tool that Congress may use to overturn rules issued by federal agencies.

The Commission argues that official time to work on EEOC complaints should be subject to agency collective bargaining negotiations. EEOC guarantees official time to federal employees working on discrimination complaints, but this rule change would end this practice only for union officials. If accusers enlist a union official to represent them in EEOC proceedings, the union official’s use of official time would be subject to their agency’s collective bargaining agreement. However, if they use a non-union official as representation, they will receive EEOC-guaranteed official time.

After releasing the rule, EEOC received over 11,000 submissions for comment, mostly opposing the rule out of concern that victims will not receive effective representation. In spite of this negative response, the final rule approved by the EEOC contained no revisions, except for an addendum that excluded the new rule from scrutiny under the Congressional Review Act.

Democratic EEOC Member Charlotte Burrows, who opposed the rule change, said in a statement, “Congress was fully aware that a separate category of official time existed when it addressed it for union matters. 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.”

In contrast, EEOC Vice Chairman Keith Sonderling supported the rule and said, “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.”

The Department of Veterans Affairs, the Department of Agriculture, and the Office of Personnel Management left positive comments after reviewing the regulation. Vice Chairman Sonderling spoke on this feedback and 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.”

American Federation of Government Employees Policy Director Jacqui Simon does not support the implementation of the new rule. She said, “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. To be deprived of that person, who can you trust? You’re left with nothing.”