JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, SPEAKS WITH CYBERFEDS ABOOUT EEOC ENDING OFFICIAL TIME FOR UNION REPS

Posted By smay || 12-Dec-2019

Scrutinize disciplinary actions involving possible whistleblower

EEOC considers ending official time for union reps in EEO complaints

IN FOCUS: Attorneys that represent federal employees are concerned by a leaked Equal Employment Opportunity Commission “draft-deliberative” proposed rule that, if finalized, would roll back official time for union representatives working on EEO complaints.

The EEOC declined to comment on the document, but the attorneys said it is an effort to significantly limit the use of official time as an extension of Executive Order 13837.

In the draft, the EEOC said the commission’s official time rule does not apply to official union representatives acting under a collective bargaining agreement because the EEOC “believes that the relevant labor relations statute articulates the best policy for determining if someone receives official time when they act for a labor organization and the Commission does not want its regulations to undermine this approach.”

Possible proposed change 

Under the EEOC’s current official time rule, 29 CFR 1614.605 (b), both employee complainants and representatives have the right to “reasonable” official time during their involvement in the complaint process, but what is “reasonable” is determined by the supervisor, Joanna Friedman, a partner at the Federal Practice Group, told cyberFEDS® in an exclusive interview.

This “is not about unions” but rather about closing a loophole in EO 13837, which restricts union stewards from using official time to work on grievances, Friedman said.

This draft-deliberative, if proposed and finalized, “is just making clear that if a union member is filing an EEO complaint, they cannot use a union steward to represent on official time.”

Currently, if an employee is going to initiate an EEO complaint through the 29 CFR Part 1614 process, another “employee” can serve as his representative and both of them can get official time if approved by their supervisors, Friedman said. The representative

Under the current rule, union stewards can also serve as the employee’s representative in the EEO complaint process if allowed by the CBA and no conflict of interest exists, she added.

It’s unclear how often union stewards serve as an EEO representative, Friedman said, and exceptions exist, such as at the Postal Service where union stewards do sometimes act as EEO representatives.

“This rule is saying that if the representative in the 1614 process happens to be your union representative, that person would no longer be able to get official time for the hours spent on the case,” she said.

Ramifications

American Federation of Government Employees National Vice President for Women and Fair Practices Jeremy Lannan said the “EEOC’s sudden move to strip representatives of this long-held right simply because they serve in the union is disgraceful and, if allowed to take effect, will have a chilling effect on the ability of workers to successfully challenge workplace discrimination.”

Rachel Shonfield, president of AFGE Council 216, which represents EEOC employees nationwide, added that “denying employees the ability to get representation from their union representative — a person they are aware is knowledgeable on representation and the process — sends exactly the wrong message.”

However, Friedman noted that the ramifications of such a change would depend on how often employees use union representatives in their EEO complaints.

Generally, employees cannot file both a union grievance and an EEO complaint because the rules require that they elect a forum for their complaint, she said. The only exception to this is the USPS, which allows both processes to occur concurrently, so employees have the union representative concurrently file the grievance and the EEO complaint more often than at other agencies.

Under EO 13837, union representatives can no longer get official time for representing employees with a grievance unless the time falls within the maximum number of official time hours allowed by the formula set by the EO, she explained. While some hours may fall within those “banked hours,” many hours will not.

If the time does not fall within the “banked” maximum, union representatives are forced to decide whether to represent employees on their own time, which could impact the quality of representation the employee receives, she added.

Alternative 

Friedman pointed out that employee representatives can still get official time for helping pursue an EEO complaint because the proposed rule only excludes union representatives from getting official time.

So, “technically a union representative could still be an employee’s designative representative and qualify for official time, just as long as the person says he/she is acting as an employee, not as a union representative,” she noted. “If the person is designated as a federal employee, without saying he is acting as a union representative, he could get official time so long as he doesn’t indicate the representation is part of union duties.”

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

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Reprinted with permission from: cyberFEDS®. © 2019 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit our website at: www.shoplrp.com

Categories: Federal Employment Law, Firm News
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