Withdrawal of NPRM Addressing Official Time in the Federal Equal Employment Opportunity Process, 66656-66658 [2024-18238]
Download as PDF
<![CDATA[
66656
Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1
assistive listening devices, language
translation services, or other reasonable
accommodations. We ask that you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section of
this document at least seven (7)
business days prior to the meeting to
give the Department of the Interior
sufficient time to process your request.
All reasonable accommodation requests
are managed on a case-by-case basis.
SUPPLEMENTARY INFORMATION: These
meetings will be held under the
authority of the PROGRESS Act (Pub. L.
116–180), the Negotiated Rulemaking
Act (5 U.S.C. 561 et seq.), and the
Federal Advisory Committee Act (5
U.S.C. Ch. 10). The Committee is to
negotiate and reach consensus on
recommendations for a proposed rule
that will replace the existing regulations
at 25 CFR part 1000. The Committee is
charged with developing proposed
regulations for the Secretary’s
implementation of the PROGRESS Act’s
provisions regarding the Department of
the Interior’s (DOI) Self-Governance
Program.
The PROGRESS Act amends
subchapter I of the Indian SelfDetermination and Education
Assistance Act (ISDEAA), 25 U.S.C.
5301 et seq., which addresses Indian
Self-Determination, and subchapter IV
of the ISDEAA, which addresses DOI’s
Tribal Self-Governance Program. The
PROGRESS Act also authorizes the
Secretary to adapt negotiated
rulemaking procedures to the unique
context of self-governance and the
government-to-government relationship
between the United States and Indian
Tribes. The Federal Register (87 FR
30256) notice published on May 18,
2022, discussed the issues to be
negotiated and the members of the
Committee.
Meeting Agenda
These meetings are open to the
public. Detailed information about the
Committee, including meeting agendas
can be accessed at https://www.bia.gov/
service/progress-act. Topics for these
meetings will include Committee
priority setting, subcommittee reports
on comments received from Tribal
consultations, review and approval of
draft final rule documents, Committee
caucus, and public comment.
For in-person meetings, members of
the public are required to present a
valid government-issued photo ID to
enter the building; and are subject to
security screening, including bag and
parcel checks.
Plenary Meeting (Number 16)
• Meeting date: September 12, 2024.
VerDate Sep<11>2014
17:19 Aug 15, 2024
Jkt 262001
• Meeting time: 1 to 5 p.m. ET.
• Meeting location: Hybrid (in-person
and virtual).
• In-person meeting room: John Muir
Room.
• Address: Department of the Interior,
1849 C Street NW, Washington, DC
20240.
• Virtual link: https://teams.
microsoft.com/l/meetup-join/
19%3ameeting_MTJjZDA1M2Yt
NmM5MC00NGFhLWFlOTItNj
Q1NTZmZWQ4Nzll%40thread.v2/
0?context=%7B%22Tid%22%3
A%220693b5ba-4b18-4d7b-9341f32f400a5494%22%2C
%22Oid%22%3A%2213321130-a12b4290-8bcf-30387057bd7b%22%2C%22
IsBroadcastMeeting%22%3Atrue
%2C%22role%22%3A%22a%22%7D&
btype=a&role=a.
• Comments: Submit by October 10,
2024.
Plenary Meeting (Number 17)
• Meeting date: September 19, 2024.
• Meeting time: 1 to 5 p.m. ET.
• Meeting location: Hybrid (in-person
and virtual).
• In-person meeting room: John Muir
Room.
• Address: Department of the Interior,
1849 C Street NW, Washington, DC
20240.
• Virtual link: https://
teams.microsoft.com/l/meetup-join/
19%3ameeting_OTNhMTFmNTUtZGE3
My00YmViLTgwNzQtZDliYj
VhNTEyYjkz%40thread.v2/0?context=
%7B%22Tid%22%3A%220693b5ba4b18-4d7b-9341-f32f400a5494%22%2C
%22Oid%22%3A%2213321130-a12b4290-8bcf-30387057bd7b%22%2C%22
IsBroadcastMeeting
%22%3Atrue%2C%22
role%22%3A%22a%22%7D&btype=a&
role=a.
• Comments: Submit by October 17,
2024.
Public Comments
Depending on the number of people
who want to comment and the time
available, the amount of time for
individual oral comments may be
limited. Requests to address the
Committee during the meeting will be
accommodated in the order the requests
are received. Individuals who wish to
expand upon their oral statements, or
those who had wished to speak but
could not be accommodated on the
agenda, may submit written comments
to the Designated Federal Officer up to
30 days following the meeting. Written
comments may be sent to Vickie Hanvey
listed in the ADDRESSES section above.
Before including your address, phone
number, email address, or other
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
(Authority: 5 U.S.C. Ch. 10)
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2024–18382 Filed 8–15–24; 8:45 am]
BILLING CODE 4337–15–P
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
29 CFR Part 1614
RIN 3046–AB00
Withdrawal of NPRM Addressing
Official Time in the Federal Equal
Employment Opportunity Process
Equal Employment
Opportunity Commission.
ACTION: Withdrawal of rulemaking.
AGENCY:
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 coworkers during the EEO complaint
process.
DATES: August 16, 2024.
FOR FURTHER INFORMATION CONTACT:
Kathleen Oram, Assistant Legal
Counsel, at (202) 921–2665 or
kathleen.oram@eeoc.gov, or Gary J.
Hozempa, Senior Staff Attorney, at (202)
921–2672 or gary.hozempa@eeoc.gov,
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
SUMMARY:
E:\FR\FM\16AUP1.SGM
16AUP1
Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Proposed Rules
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.
lotter on DSK11XQN23PROD with PROPOSALS1
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
VerDate Sep<11>2014
17:19 Aug 15, 2024
Jkt 262001
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 nonexistent problem.
Other commenters argued that the
Commission failed to show that its
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
66657
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 nonactionable 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
E:\FR\FM\16AUP1.SGM
16AUP1
66658
Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1
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 labormanagement 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 labormanagement 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 EEOrelated 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
VerDate Sep<11>2014
17:19 Aug 15, 2024
Jkt 262001
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
PO 00000
Frm 00020
Fmt 4702
Sfmt 9990
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 coworker 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
E:\FR\FM\16AUP1.SGM
16AUP1
]]>Agencies
[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 [www.gpo.gov]
[FR Doc No: 2024-18238]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 [email protected], or Gary J.
Hozempa, Senior Staff Attorney, at (202) 921-2672 or
[email protected], 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
