Proposed Rule2024-18238
Withdrawal of NPRM Addressing Official Time in the Federal Equal Employment Opportunity Process
Primary source
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Published
August 16, 2024
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The Equal Employment Opportunity Commission ("EEOC" or "Commission") is withdrawing its Notice of Proposed Rulemaking ("NPRM") to amend its regulation addressing official time for Federal agency employees who represent co-workers during the EEO complaint process.
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Proposed Rules]
[Pages 66656-66658]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18238]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AB00
Withdrawal of NPRM Addressing Official Time in the Federal Equal
Employment Opportunity Process
AGENCY: Equal Employment Opportunity Commission.
ACTION: Withdrawal of rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is withdrawing its Notice of Proposed Rulemaking
(``NPRM'') to amend its regulation addressing official time for Federal
agency employees who represent co-workers during the EEO complaint
process.
DATES: August 16, 2024.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#741f15001c1811111a5a1b0615193411111b175a131b02"><span class="__cf_email__" data-cfemail="325953465a5e57575c1c5d40535f7257575d511c555d44">[email protected]</span></a>, or Gary J.
Hozempa, Senior Staff Attorney, at (202) 921-2672 or
<a href="/cdn-cgi/l/email-protection#4d2a2c3f346325223728203d2c0d2828222e632a223b"><span class="__cf_email__" data-cfemail="630402111a4d0b0c19060e13022306060c004d040c15">[email protected]</span></a>, Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission. Requests for this document in an alternative
format should be made to the EEOC's Office of Communications and
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or
1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION: On December 11, 2019, the EEOC published in
the Federal Register a Notice of Proposed Rulemaking (NPRM) announcing
its intention to amend 29 CFR 1614.605(b) to state that union officers
and stewards are excluded from that section's grant of reasonable
official time for representational services during EEO administrative
proceedings. See NPRM, Official Time in Federal Sector Cases Before the
Commission, 84 FR
[[Page 66657]]
67683. That publication generated over 1800 comments, almost all of
which opposed the proposed change. In order to give ``all interested
stakeholders ample opportunity to comment,'' the Commission reopened
the comment period for another 60 days. See 85 FR 33049 (June 1, 2020).
During the second comment period, over 5,700 individuals and
organizations submitted comments. Again, the vast majority of
commenters opposed the proposed amendment. On January 12, 2021, the
EEOC submitted to the Federal Register a draft final rule amending
section 1614.605(b) as proposed in the NPRM. On January 21, 2021, the
EEOC withdrew the draft rule before it was published, pursuant to the
``Memorandum for the Heads of Executive Departments and Agencies,''
from Ronald A. Klain, Assistant to the President and Chief of Staff
(January 20, 2021). For the reasons stated below, the Commission has
decided to withdraw this rulemaking.
Background--29 CFR 1614.605(a)
Pursuant to the EEOC's Federal sector complaint processing
regulations, ``[a]t any stage in the processing of a complaint,'' a
complainant is entitled ``to be accompanied, represented, and advised
by a representative of complainant's choice.'' 29 CFR 1614.605(a). If
the representative is an employee of the complainant's agency, ``the
representative shall have a reasonable amount of time, if otherwise on
duty,'' to provide representational services. 29 CFR 1614.605(b).
The Proposed Rule To Amend 29 CFR 1614.605(b)
The NPRM proposed amending section 1614.605(b) to state that the
entitlement to official time to represent a same-agency employee in an
EEO matter does not apply to a representative who serves in an official
capacity in a labor organization that is an exclusive representative of
employees of the agency. Instead, whether the union representative is
entitled to official time would depend on a bargaining agreement
between the agency and labor organization.
The NPRM asserted that whether a union official should receive
official time for EEO representational duties was best determined by
the relevant labor relations statute--the Federal Service Labor-
Management Relations Statute (``FSLMRS''), as the FSLMRS was
``specifically designed to address the unique relationship between
labor organizations and federal agencies.'' 84 FR at 67684. The NPRM
reasoned that, because the EEOC's basic approach to official time stems
from regulations predating enactment of the FSLMRS, and the EEOC never
reconsidered its approach in light of the FSLMRS, the EEOC has caused
stakeholder confusion. See id. In consideration of the FSLMRS, the NPRM
concluded that the best policy choice would be to amend the EEOC's
official time rule to exclude union officials so that an agency and a
union could bargain over the availability of official time.
The Public Comments on the Proposed Rule
Most commenters objected to the proposed rule, although a small
number endorsed the proposal and the rationale provided in the NPRM.
Comments in Support of the Proposed Rule
Those favoring the proposed rule primarily did so because it
differentiated between the EEOC's authority over the Federal sector
complaint process pursuant to section 717 of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e-16 (``Title VII'') and
the authority of the Federal Labor Relations Authority (``FLRA'') under
the FSLMRS. Commenters stated that the proposed rule correctly placed
the issue of official time for union representatives under 5 U.S.C.
7131 (Official Time) of the FSLMRS. In the opinion of these commenters,
official time for union representatives should not be administered or
governed by the EEOC because the EEOC lacks authority over the issue,
whereas the FLRA possesses such authority.
Comments Opposed to the Proposed Rule
Commenters objecting to the NPRM stated that the proposed rule was
erroneously predicated upon the FSLMRS, rather than the Congressional
intent expressed in Title VII, and unfairly targeted only those Federal
employees who also happen to serve as union officials. Commenters
further argued that the EEOC had not presented empirical evidence--such
as reports, studies, statistics, data, surveys, or anecdotes--to
demonstrate that, since the inception of the EEOC's official time rule
in 1987, agencies or unions had in fact expressed confusion regarding
bargaining obligations about official time or requested clarification
on the matter of official time and its relationship to the FSLMRS.
These commenters concluded that the EEOC was creating a solution for a
non-existent problem.
Other commenters argued that the Commission failed to show that its
policy choice would lead to better EEO complaint processing or outcomes
consistent with the EEOC's mission. Some of these commenters asserted
that the NPRM had not considered whether the proposal would have a
negative impact on a complainant's right to a representative of their
choice. For example, it was noted that union representatives often are
knowledgeable of, and experienced in, the EEO process. These commenters
stated that, if the only Federal employees not granted official time to
represent their coworkers were those employees most experienced in
these types of cases, the proposed rule would hinder Federal employees
challenging discrimination. It further was asserted that the proposed
amendment threatened to arbitrarily and capriciously except union
representatives--and only union representatives--from the class of
employees a complainant can choose as a representative.
Commenters stated that a union official representative could assist
complainants in distinguishing between prohibited discrimination and
non-actionable workplace behavior, which would lead to more
constructive outcomes for complainants and agencies, and a more
efficient EEO process. If union officials could not use official time,
commenters stated, complainants would be deprived of the effective
assistance that union officials can provide, and employees who have
experienced prohibited discrimination would be less likely to initiate
complaints and follow them through to resolution.
Other commenters opposing the NPRM noted that the EEOC's proposal
to leave the determination of official time to negotiations between
employers and labor organizations would most likely diminish a Federal
employee's right to choose a union official as their representative of
choice. They argued that the likely result of the proposed change--
requiring union officials to take leave without pay for performing
representational services--would discourage them from representing
their coworkers in the EEO complaint process. They further maintained
that the proposed rule would send a message that the EEOC wants
complainants to have inferior representation or representation that is
cost-prohibitive to many; it would cause many complainants to proceed
pro se or with coworker-representatives who are unfamiliar with the EEO
complaint process. Thus, they concluded, the proposed rule would
prevent many complainants from obtaining competent representation and
could thwart Federal
[[Page 66658]]
workers from successfully challenging and addressing workplace
harassment and discrimination.
The Commission's Decision To Withdraw the Rulemaking
The NPRM proposed amending the official time rule because it
``believe[d] that the best policy approach is to leave the
determination of whether a union official receives official time to the
provisions of the FSLMRS.'' 84 FR at 67684. However, the NPRM did not
take into account that the FSLMRS does not require an agency and union
to bargain over the use of official time for representational services
when provided in forums unrelated to labor-management relations
activities, such as the 29 CFR part 1614 EEO complaint process. See
National Archives and Records Administration (Agency) and American
Federation of Government Employees, Council 236, Local 2928 (Union), 24
F.L.R.A. 245, 247, FLRA Rep. No. 407, 24 FLRA No. 29, 1986 WL 54527, *3
(November 26, 1986) (holding that ``official time negotiated under [the
FSLMRS] is to be used for labor management relations activity'');
American Federation of Government Employees National Council of Field
Labor Locals (Union) and U.S. Department of Labor Mine Safety and
Health Administration Denver, Colorado (Agency), 39 F.L.R.A. 546, 553,
FLRA Rep. No. 672, 39 FLRA No. 44, 1991 WL 32963, *6 (February 13,
1991) (stating that ``[the FSLMRS] relates only to the granting of
official time in connection with labor-management relations
activities'').
Additionally, the FSLMRS does not address the Federal sector EEO
complaint process and, in the absence of such a statutory command,
commenters in favor of the proposed rule did not explain why the best
policy choice for the EEOC would be to follow the FSLMRS when
determining which EEO-related representational activities warrant the
use of official time. As commenters acknowledged, the EEOC and the FLRA
have authority to administer different laws, each with its own
standards. Just as the EEOC does not have the authority to impose
official time rules in the labor-management relations arena, the FLRA
does not have the authority to impose its rules in the EEO complaint
forum. Deferring to the FSLMRS regarding whether union officials are
entitled to official time when representing a same-agency Federal co-
worker in an EEO complaint would interfere with EEOC's authority and
responsibilities under Title VII.
Part of the mission of the EEOC is to ensure that laws that protect
Federal employees from workplace discrimination are fully enforced.
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 co-worker, 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. As a number of commenters
stated, if a complainant is dissuaded from securing a union
representative because the representative is not entitled to official
time, the complainant may decide not to challenge alleged employment
discrimination. When a Federal sector complainant is reluctant to
proceed, it diminishes the EEOC's fundamental ability to eliminate
employment discrimination within the Federal government. Since the
purpose of the EEOC is to ensure that employees have equal employment
opportunities, it must promote effective representation by providing
employees with choices on who represents them, including being
represented by co-worker union officials.
Moreover, Congress intended for both Title VII and the Commission
to serve a broad remedial function in the Federal sector and for
actions accordingly to be remedial in nature. See 42 U.S.C. 2000e-16(b)
(the EEOC ``shall have the authority to enforce [the federal sector
prohibition against discrimination in Title VII] through appropriate
remedies. . . .''). The change proposed in this NPRM, however, is
contrary to this Congressional directive and will harm Federal
employees. It restricts a complainant's choice of representative by
excluding, for the first time, any representative who ``serves in an
official capacity in a labor organization'' from eligibility. Union
representatives in the EEO process often are the only representatives
available to Federal employees at no cost to those alleging
discrimination. Without access to such representation, complainants
would have to choose between finding and paying an attorney, proceeding
without a representative, or dropping the complaint. None of these
options is consistent with the EEOC's mandate under Title VII.
The Commission also agrees with commenters' arguments that there is
no guarantee that all agencies and unions would bargain for affording
official time to union officials when representing EEO complainants.
Under the proposed rule, the result of bargaining would be that union
officials at some agencies would be entitled to use official time
whereas at other agencies they would not. Complainants who would file
EEO complaints against agencies in the latter group likely would be
foreclosed from choosing a union official as a representative, and many
would be deprived of their chosen representative in the Title VII
administrative EEO forum. Thus, it is likely that, if the proposed rule
were adopted, a knowledgeable corps of union representatives committed
to strongly advocating for Federal workers in workplace disputes would
be excluded from representing EEO complainants in direct contradiction
to EEOC's overall goal, to the detriment of Federal employees.
The EEOC, as the lead Federal EEO agency, is charged with full
enforcement of the Federal EEO laws. Pursuant to 42 U.S.C. 2000e-16(b),
the EEOC ``shall have authority to . . . issue such rules, regulations,
orders and instructions as it deems necessary and appropriate to carry
out its responsibilities under this section.'' Using this authority,
the EEOC adopted a rule that provides that a same-agency co-worker
shall have a reasonable amount of time to represent a same-agency EEO
complainant. See 29 CFR 1614.605(a). Nothing in Title VII or the
current rule restricts the type of co-worker representative who can
receive official time. The co-worker can be a subordinate, a peer, a
management official, or a union steward or officer. The changes
proposed in this NPRM would, for the reasons stated above, weaken
rather than strengthen EEO enforcement in Federal agencies. Therefore,
the EEOC concludes that the proposal that official time for union
officials in the EEO complaint process be governed by the FSLMRS is not
consistent with the EEOC's statutory mandate.
Given that the Commission has determined that amending the current
official time rule is not in the best interests of EEO complainants and
their co-worker representatives under the laws enforced by the
Commission, the Commission is withdrawing this rulemaking.
Charlotte A. Burrows,
Chair.
[FR Doc. 2024-18238 Filed 8-15-24; 8:45 am]
BILLING CODE 6570-01-P
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