The Equal Employment Opportunity Commission voted along party lines last week to cancel a second source of official time for union representatives who help their colleagues file and respond to certain kinds of discrimination complaints.

The policy, which the EEOC first proposed last June, prevents union representatives from using official time to help their colleagues with equal employment opportunity complaints.

Union representatives can bargain with their agencies for official time through the negotiation process. But under EEOC regulations, agencies must give labor representatives an additional source of official time to help their colleagues file and respond to certain kinds of discrimination complaints.

With the commission’s 3-2 vote in favor of the new policy last week, union representatives have lost that second source of official time. Federal employees who embark on the discrimination complaint process will still have access to official time.

In a public meeting last week, a majority of EEOC commissioners say the official time policy changes will help agencies operate more efficiently, and they disputed claims that the new rules will limit federal employees from choosing a representative to help them pursue their cases.

But two of the EEOC’s commissioners argued the new rules will upend more than four decades of federal labor precedent, describing the changes as an “11th hour” bid to push through major federal personnel policy changes before the start of the incoming Biden administration.

The commission received 5,751 comments on the draft policy through two separate public comment periods. The vast majority came from union members through a coordinated letter writing campaign, but the commission also received comments from agencies, former EEOC employees and members of Congress.

Rep. Jamie Raskin (D-Md.) led more than 180 other House Democrats in writing to the commission last summer to express their opposition.

EEOC Chairman Janet Dhillon said she heard the concerns from members of the public and others, but their comments didn’t convince her why the commission should abandon the proposed official time policy changes.

Instead, she was swayed by the comments from agencies, who said eliminating a second source of official time would allow them to more efficiently manage their resources and serve the public.

“Because the EEOC’s current regulations serve as a second source of official time, agencies explained it made it difficult for them to plan the allocation of their workforce,” Dhillon said. “Official time for union officials that was acquired through bargaining was often undercut by the same union officials claiming official time through EEOC regulations. This made it difficult for agencies to plan work schedules and fulfill their missions.”

Keith Sonderling, the commission’s vice chair, agreed and pointed to comments from the Department of Veterans Affairs, which said the current policies made it difficult to determine staffing availability.

Other commissioners, however, disagreed. They described the official time policy as a “blatant attack on unions and workers’ rights” and said the final rule didn’t adequately describe the volume of opposition the EEOC received to the proposed changes.

Charlotte Burrows, an EEOC commissioner, said she had never seen that level of opposition to a proposed rule change from the agency. Without access to free counsel from their colleagues, she feared the official time policy changes would have a disproportionate impact on lower income employees with few resources to pay for a private attorney.

“If approved, this ill-conceived rule will have the biggest negative impact on vulnerable workers who may not have resources to hire an attorney, who fear retaliation for participating in EEO activities and may be most likely to be subject to harassment,” Burrows said at the beginning of the agency’s debates on the policy change. “Harassment on all bases is consistently one of the most alleged claims in federal EEO complaints, and reducing access to union representation, particularly in the #MeToo era, will only harm federal workers and have a chilling effect on complaint filings.”

According to a 2020 review from the independent U.S. Commission on Civil Rights, at least one in seven federal employees experience some sort of sexual harassment at work, but few report it.

Andrea Lucas, another EEOC commissioner, disputed the argument that the official time policy changes would limit access to employees seeking union counsel on their EEO complaints.

“This will simply require them to use official time as negotiated through the collective bargaining process,” she said. “To the extent that they see that this is something that they strongly wish to have … they have the full power to bargain for that. I don’t view this as eliminating their ability.”

Many agencies, however, have been using the collective bargaining process to cut official time in recent years. According to a recent report on the topic from the Office of Personnel Management, agencies cut official time use by 28% in 2019.

A series of 2018 executive orders also placed a cap on the number of hours employees in a given bargaining unit could use per year for union activities.

Two commissioners accuse EEOC of making ’11th hour’ policy changes

But beyond the potential impacts of the new official time rule, some commissioners said it was inappropriate for the EEOC to make such changes to federal personnel policy two weeks before the beginning of a new administration.

According to Burrows, who’s serving her second term since joining the commission in 2014, the EEOC made last minute changes to the policy’s language that attempted to shield the official time rule from the Congressional Review Act. In a statement at the bottom of the final policy, the commission said it believed the official time changes were simply a rule of “agency procedure” and not a “major rule” for the purposes of the Congressional Review Act.

The act gives Congress the authority to review new regulations from federal agencies and, through an expedited process, overturn them.

Jocelyn Samuels, another EEOC commissioner, said she’s convinced the new Congress would find a way to overturn the new official time policy.

“In a new Congress and a new administration, there will undoubtedly be people who are interested in revisiting this rule if in fact it is adopted by us today,” Samuels said. “The commission’s inclusion of this language will have no effect on the legal authority of any government body to do so. Given my concerns about this rule and how unnecessary, detrimental, arbitrary and capricious it is, I will be looking for ways to limit its detrimental impact if we pass it, today and into the future.”

Burrows introduced an amendment striking the Congressional Review Act language, but the commission voted it down along party lines.

“We have seen what partisan overreach looks like in the ugliest possible way [last Wednesday] at the U.S. Capitol,” she said. “I do not understand why we would be doing this now, particularly given that as Commissioner Samuels points out, its days are numbered. And yet we have had our dedicated career staff working every day, Christmas through New Year’s and beyond, to create these proposals and finalize them and exhaust everyone, but it’s not going to stick.”

For Burrows, the new official time policy conflicts with the mission of the EEOC and its authorizing statute.

“In the days when they created, considered and debated the [19]64 act that created our agency, there was a right and a wrong side of history,” she said. “This proposal is on the wrong side of history.”

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