[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]


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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 [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]
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