The Equal Employment Opportunity Commission closed a controversial chapter in its history on Friday when it formally withdrew a proposed regulation that would have barred public sector union officials from using their work time to help their colleagues pursue discrimination complaints.
The story goes back to 2019, when the EEOC, then under Republican control, first proposed the rule. For decades, the agency has guaranteed official time—that is, time during which a worker is paid for something other than their official duties—to federal employees handling their own or their colleagues’ discrimination claims. The rule is intended to help victims feel more comfortable and better navigate a complicated legal process.
In the 2019 proposal, agency officials argued that the legal basis for EEO proceedings predates the Civil Service Reform Act of 1978, which established official work hours as a practice in federal sector collective bargaining. The EEOC should therefore rely on each agency’s collective bargaining agreement to determine whether official work hours should be granted.
The result, union leaders said at the time, would be that no union official would be able to use their time off because EEO procedures would not be addressed in their contracts with management, which had previously been guaranteed by the commission itself. However, the EEOC would continue to guarantee nonunion federal employees their time off.
In January 2021, the EEOC voted 3-2 along party lines to finalize the plan and publish a final implementing rule, despite receiving 11,000 submissions during the proposal’s 120-day comment period, the vast majority of which opposed the idea. But a month later, the rule’s publication and implementation were blocked as the Biden administration reviewed so-called “midnight regulations” from the previous president’s final days in office.
In an announcement in Federal Register On Friday, EEOC officials formally withdrew the proposal and issued a sharp rebuke to their former leadership. The document accused officials of failing to provide evidence that there was confusion or conflict among agencies or unions over the use of work time in discrimination cases and said the decision would have made it harder for victims of workplace discrimination to obtain justice.
“Part of the EEOC’s mission is to ensure that laws protecting federal employees from employment discrimination are fully enforced,” the agency wrote. “This includes guaranteeing that a federal complainant is entitled to a representative of his or her choosing with an EEO claimant and that both the complainant and the representative (if a co-worker) are authorized to use their official time in pursuing the complaint. Singling out union representatives as the only federal employees who are not authorized to use their official time to assist EEO complainants undermines that mission. It creates a barrier to securing competent representation, making it more difficult for complainants to effectively pursue their EEO complaints.”
The withdrawal notice has practical implications. If former President Trump wins the election this November, the EEOC would have to restart the legislative process on the issue from scratch, with a new notice of proposed legislation followed by a period of public comment before attempting to implement the initiative again.
