FLRA rules against HHS on telework, flags fake citations in agency brief

The Federal Labor Relations Authority is requiring the Department of Health and Human Services to reinstate telework for employees. The FLRA is upholding a third-party arbitrator’s findings that HHS’s removal of telework options violated a collective bargaining agreement for employees.

“The agency’s arguments do not demonstrate that the award is irrational, unfounded, implausible or in manifest disregard of the parties’ agreement. Therefore, we deny the essence exception,” the authority wrote in the decision.

The decision represents a win for the National Treasury Employees Union, although it said HHS employees are unlikely to see immediate changes to telework arrangements. NTEU President Doreen Greenwald told Federal News Network that the ruling is a significant victory for HHS employees that sends a clear message to federal agencies: contracts are not suggestions.

“NTEU members stood together, fought back, and won. Our rights are not optional,” she said. “We call on HHS to comply fully with the arbitrator’s ruling without further delay. Until it does, NTEU will continue to defend telework, enforce our contracts, and hold agency leaders accountable.”

Suzanne Summerlin, a federal labor attorney, said in an interview with Federal News Network that the union’s victory marks one of the first decision rulings from the FLRA related to the 2025 return-to-work mandate. The Department of Treasury Bureau of Engraving and Printing is one of the other victories of NTEU. Summerlin added that many workers are still in limbo waiting for the appeal process to finish.

“I am interested to see if the FLRA continues to uphold these awards, or if they start distinguishing between which awards they will uphold and which awards they won’t,” said Summerlin. “Right now, the arbitration awards all pretty much come down on the side of the workers, but if the FLRA starts deciding these cases kind of by splitting hairs, it’s going to lead to a very uneven results for the federal workforce.”

The decision also noted that HHS likely used artificial intelligence to draft the exception brief. FLRA found that over half of the legal or record citations in HHS’s brief were fictitious, erroneous or irrelevant.

“Based on the nature and scope of these errors, it appears that the agency may have used a generative AI tool in drafting its brief. While nothing prohibits parties from using AI tools when preparing filings for submission to the Authority, we caution those who do so to be aware that AI continues to present significant risks of error,” the authority wrote. “Parties should take steps to verify the accuracy of any AI‑generated material and ensure that their filings satisfy all regulatory requirements.”

Summerlin said the addition of AI could make it easier for agencies to not follow the arbitration award until a FLRA ruling. AI could help agencies file exceptions against an arbitrator’s decision quicker, which would then allow agencies to assert that the arbitration decision is under review and therefore not enforceable. She added that rulings from FLRA can sometimes take three to four years, which impacts how agencies enforce the arbitration ruling.

“Chairman Kiko is a person who really wants to see a good argument from both sides. She wants to see people following the rules, following the procedures, and so I think that’s why you got that comment about AI hallucinations,” said Summerlin. “It’s very low cost for an agency to file these exceptions, and then they get this reward, which is that they don’t have to follow the arbitrator’s decision for an indeterminate amount of time. This happened before the time of AI; I can’t imagine the level of AI slop that is coming into the authority.”

An online survey that Federal News Network conducted in May solicited feedback from federal employees on their experience working in the office, following broad cancellations of telework and remote work agreements in early 2025. Many respondents described feeling unhappy and unsatisfied with their work. Some spoke of wanting to quit their jobs, and many said morale is at an all-time low.

“Telework is not new in the federal sector. It was considered a really good idea and a cost savings for the federal government. Federal workers have said time and time again that [telework] is important to them, and it keeps them in their job,” said Summerlin. “That creates a stronger federal workforce with smarter people if they just get a little flexibility.”

HHS has until Dec. 21 to appeal the FLRA’s decision in a federal appellate court.

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