Official Time in Federal Sector Cases Before the Commission

Federal Register, Volume 84 Issue 238 (Wednesday, December 11, 2019)
[Federal Register Volume 84, Number 238 (Wednesday, December 11, 2019)]
[Proposed Rules]
[Pages 67683-67685]
From the Federal Register Online via the Government Publishing Office []
[FR Doc No: 2019-26545]
29 CFR Part 1614
RIN 3046-AB00
Official Time in Federal Sector Cases Before the Commission
AGENCY: Equal Employment Opportunity Commission.
ACTION: Proposed rule.
SUMMARY: The Equal Employment Opportunity Commission (EEOC or
Commission) proposes amending its rule covering official time for
representatives who are employees of the federal government. The
Commission seeks to clarify that its rule concerning official time does
not apply to representatives who serve in an official capacity in a
labor organization that is the exclusive representative of employees in
an appropriate unit. The Commission is doing this because it 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.
DATES: Comments are due on or before February 10, 2020.
ADDRESSES: You may submit comments by the following methods:
    You may submit comments, identified by RIN Number 3046-AB00, by any
of the following methods:
     Federal eRulemaking Portal:
Follow the instructions for submitting comments.
     Fax: (202) 663-4114. (There is no toll free fax number).
Only comments of six or fewer pages will be accepted via fax
transmittal, in order to assure access to the equipment. Receipt of FAX
transmittals will not be acknowledged, except that the sender may
request confirmation of receipt by calling the Executive Secretariat
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not
toll free numbers).
     Mail: Bernadette B. Wilson, Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
     Hand Delivery/Courier: Bernadette B. Wilson, Executive
Officer, Executive Secretariat, U.S. Equal Employment Opportunity
Commission, 131 M Street NE, Washington, DC 20507.
    Instructions: The Commission invites comments from all interested
parties. All comment submissions must include the agency name and
docket number or the Regulatory Information Number (RIN) for this
rulemaking. Comments need be submitted in only one of the above-listed
formats. All comments received will be posted without change to, including any personal information you provide.
    Docket: For access to comments received, go to Copies of the received comments also will be
available for review at the Commission's library, 131 M Street NE,
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and
5:00 p.m., until the Commission publishes the rule in final form but
you must make an appointment to do so with library staff.
FOR FURTHER INFORMATION CONTACT: Andrew Maunz, Special Assistant to the
Chair, [email protected] or 202-663-4039.
SUPPLEMENTARY INFORMATION: Under section 717 of Title VII of the Civil
Rights Act of 1964, as amended, the Commission is responsible for the
enforcement of equal employment opportunity (EEO) in the federal
employment. As such, the Commission is authorized to issue rules,
regulations, orders, and instructions as necessary and appropriate to
carry out its EEO responsibilities. Section 717(b) of Title VII
provides that ``[e]xcept as otherwise provided in this subsection, the
Equal Employment Opportunity Commission shall have authority to enforce
the provisions of subsection (a) of this section through appropriate
remedies . . . . and shall issue such rules, regulations, orders and
instructions as it deems necessary and appropriate to carry out its
responsibilities under this section.'' Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000e-16.
    In 1978, the President consolidated numerous EEO responsibilities
at the EEOC and, among other things, transferred responsibility for all
federal sector EEO from the Civil Service Commission to the EEOC.\1\
When the Commission took on responsibility for federal sector EEO,
however, the Commission did not create a new process. As the Commission
stated in 2015, when it contemplated a review of longstanding federal
sector EEO procedures of which this proposed rule is a small part,
    \1\ On February 23, 1978, the President submitted to Congress
Reorganization Plan No. 1 of 1978, which consolidated Federal Equal
Employment Opportunity Activities. The text of the President's
message and the terms of the plan are at 124 Congressional Record H
1457 (H. Doc. No. 95-295).
[T]he Federal sector EEO complaint processing procedures did not
originate with EEOC in 1979 . . . . Rather, formal, regulatory
procedures first were promulgated by the Civil Service Commission
(``CSC'') in 1966, codified at 5 CFR part 713, and the basic
framework contained in those procedures was adopted by EEOC in 1979
[and codified at 29 CFR part 1613]. Although EEOC has revised the
procedures a number of times, the original structure inherited from
the CSC--counseling, complaint, investigation, hearing, final agency
action, and appeal--remains.
See Advance Notice of Proposed Rulemaking, 80 FR 6669 (Feb. 6, 2015)
(ANPRM). The EEOC thus positioned itself to make changes to the federal
sector EEO complaint process.
    Although the EEOC's original 1979 federal sector regulation at 29
CFR part
[[Page 67684]]
1613 was silent about ``official time'' for representatives of
complaining parties, in 1987 the Commission turned back to the CSC's
EEO rule for model language about ``official time''. Id. at 6670. The
Commission then adopted the ``official time'' rule that remains today,
and which was unchanged during the Commission's 1992 revision of
federal sector EEO procedures, in which the Commission rescinded 29 CFR
part 1613 and created 29 CFR part 1614. See generally 57 FR 12634
(April 10, 1992) (effective Oct. 1, 1992). Specifically, section
1614.605, under the heading ``Representation and Official Time,''
describes a complainant's right to be represented in federal sector
actions covered by the Commission's regulations. Paragraph (b) of
section 1614.605 discusses the right of both the complainant and
representative, if they are employees of the agency at issue, to
reasonable official time during their involvement in the complaint
process. It is notable that the first two sentences of paragraph (b),
which is the language that gives the right to reasonable official time
to complainants and representatives, borrows heavily from the wording
used for the comparable provision in the original CSC rule. See U.S.
Civil Service Commission, Part 713--Equal Opportunity; Filing and
Presentation of complaint, Sec.  713.214(b), 37 FR 22717, 22719 (Oct.
21, 1972).
    When the Civil Service Commission first crafted this approach in
1972, Congress had not yet passed the Federal Service Labor-Management
Relations Statute (FSLMRS), which it did in 1978. The FSLMRS
established the ability for someone acting on behalf of a labor
organization to receive official time, in some instances as a right,
but in many instances pursuant to an agreement between the agency and
the union. 5 U.S.C. 7131. Specifically, 5 U.S.C. 7131(d)(1) states that
``any employee representing an exclusive representative . . . shall be
granted official time in any amount the agency and the exclusive
representative involved agree to be reasonable, necessary, and in the
public interest.''
    Since union official time did not exist in statute until 1978,
there was no reason for the CSC's original EEO procedures to address
union official time when it first published the regulation in 1972.
However, in its subsequent modifications of the EEO procedures, the
Commission has not expressly addressed the availability of
``reasonable'' official time to union officials or how the Commission's
official time regulation for EEO proceedings interacts with the FSLMRS.
    The Commission now proposes to amend section 1614.605(b) to exclude
union representatives from its grant of reasonable official time for
EEO proceedings. Failing to clarify the Commission's regulation can
cause agencies and unions to be unclear on exactly which aspects of
official time they need to bargain. Furthermore, the FSLMRS was
specifically designed to address the unique relationship between labor
organizations and federal agencies. See 5 U.S.C. 7101(b) (``It is the
purpose of this chapter to prescribe certain rights and obligations of
the employees of the Federal Government and to establish procedures
which are designed to meet the special requirements and needs of the
Government.''). Considering this design, the Commission believes that
the best policy approach is to leave the determination of whether a
union official receives official time to the provisions of the FSLMRS.
    Therefore, the Commission proposes to amend its regulation to
clearly state that its official time provision does not apply if the
representative serves in an official capacity in a labor organization
that is an exclusive representative of employees at the agency.
Regulatory Procedures
Executive Order 12866
    The Commission has complied with the principles in section 1(b) of
Executive Order 12866, Regulatory Planning and Review. This proposed
rule is not a ``significant regulatory action'' under section 3(f) of
the Order, and therefore it has not been reviewed by the Office of
Management and Budget.
Executive Order 13771
    This proposed rule is not expected to be an E.O. 13771 regulatory
action because this proposed rule is not significant under E.O. 12866.
Paperwork Reduction Act
    This proposed rule contains no new information collection
requirements subject to review by the Office of Management and Budget
under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Regulatory Flexibility Act
    The Commission certifies under 5 U.S.C. 605(b) that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it applies exclusively to employees
and agencies of the federal government and does not impose a burden on
any business entities. For this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
    This proposed rule will not result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
    While the Commission believes the proposed rule does not
substantially affect the rights or obligations of non-agency parties
and, accordingly, is not a ``rule'' as that term is used by the
Congressional Review Act (Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996), it will still follow the reporting
requirement of 5 U.S.C. 801.
List of Subjects in 29 CFR Part 1614
    Administrative practice and procedure, Equal Employment
    For the Commission.
    Dated: December 5, 2019.
Janet Dhillon,
    For the reasons set forth in the preamble, the Commission proposes
to amend part 1614 as follows:
1. The authority citation for Part 1614 continues to read as follows:
    Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR 1954-1958 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No 1 of 1978, 3 CFR, 1978 Comp., p. 321.
2. In Sec.  1614.605 amend paragraph (b) by adding a sentence at the
end of the paragraph to read as follows:
Sec.  1614.605  Representation and official time.
* * * * *
    (b) * * * This paragraph does not apply to a representative if he
or she serves as an officer, steward, or otherwise in an official
capacity in a labor organization that is the exclusive representative
of employees in an appropriate unit at the agency under the relevant
provisions of the Federal Service Labor-Management Relations Statute
(FSLMRS). The Commission will leave whether such a representative can
[[Page 67685]]
receive official time to the FSLMRS and the bargaining agreements
between the agency and relevant labor organization.
* * * * *
[FR Doc. 2019-26545 Filed 12-10-19; 8:45 am]