February 10, 2020

VIA Electronic Submission to www.regulations.gov

Bernadette B. Wilson
Executive Officer, Executive Secretariat
U.S. Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507

Re: Response to Proposed Rule 84 Fed.Reg. 67,683-67,685, RIN 3046–AB00

To Whom It May Concern:

The National Employment Lawyers Association (NELA) respectfully submits the following comments in response to the Equal Employment Opportunity Commission’s (EEOC) Proposed Rule, published in the Federal Register on December 11, 2019, 84 Fed.Reg. 67,683-67,685.

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have been illegally treated in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments on relevant Notices of Proposed Rulemaking (NPRMs). NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees. Thus, NELA has an interest in the proposed modifications to 29 C.F.R. Part 1614.

NELA opposes this Proposed Rule, on several grounds. First, preexisting Commission regulations already allow agencies to impose flexible limits on the amount of official time agency employees spend serving as representatives. See id., § VII.C.4. NELA members have rarely observed this capping provision being invoked. Accordingly, based on the agency’s own practice, there is no apparent need for modification of 29 C.F.R. § 1614.605(b). Thus, we conclude that the Proposed Rule is unnecessary. The fact that agencies have discretion in the first instance regarding whether or not to grant official time (and what amount to grant) under Commission regulations, also suggests there is no need for dramatic modification. See, e.g., MD-110, Ch. 6, § VII.C.

Second, re-delegation of the Commission’s authority over this portion of the federal sector EEO complaints process is contrary to Congress’ express delegation of authority over that federal sector complaints process to the Commission. Congress assigned to the Commission—not the FLRA or any other agency, and not to agencies and unions engaged in collective bargaining—the responsibility for enforcement of EEO protections for the federal service. See, e.g., 42 U.S.C. § 2000e-16(b). Both Congress and the President have specifically assigned to the Commission—and not the FLRA or any other agency, and not to agencies and unions engaged in collective bargaining—authority to manage the federal sector hearings process as part of its re-delegation of authority from the former Civil Service Commission. See, e.g., MD-110, Preamble, §§ I-II. The Commission further holds the statutory authority to issue regulations governing the federal sector hearings program—not the FLRA or any other agency. See 42 U.S.C. § 2000e-16(b). Therefore, any attempt by the Commission to deny its own statutory responsibilities for rulemaking in the federal sector complaints process, instead re-delegating that authority to the FLRA or to agencies and unions engaged in collective bargaining, flies in the face of that express Congressional delegation of authority.

Under the existing regulations, while agencies have control in the first instance over official time grants, this agency discretion is subject to the Commission’s oversight directly as part of the complaints process, to be adjudicated by the Commission’s administrative judges at the same time as other issues in the complaint are also adjudicated. See MD-110, Ch. 6, § VII.C.6. That Commission oversight function would be impaired for cases involving union representatives under the Proposed Rule, as enforcement for improprieties would likely move to the FLRA, which operates on its own timeframes independent of the EEO complaints process and would be expected to result in more difficulty in enforcing agency misconduct in official time issues for EEO complaints.

Third, under the Commission’s regulations, complainants are entitled to the representative of their choice. See 29 C.F.R. § 1614.605(a); MD-110, Ch. 6, § VII.C. The proposed rule effectively takes away that right of federal employees to a representative of their choosing by denying complainants one commonly-chosen option for representation: union representatives. The Proposed Rule does not exist in isolation, but instead is expected to operate in concert with the restrictions on official time availability for union representatives in E.O. 13,837 (May 25, 2018) to severely limit the ability of union representatives to represent complainants in the federal sector EEO complaints process. If this proposed rule is finalized, this constraint would severely restrict the free choice of complainants to pick their representatives. The creation of one such restriction on choice of representatives gives rise to grave concern about potential future restrictions on whom may represent complainants in the federal sector hearings process. It also raises serious concerns about particular groups’ access to the EEO process. Employees belonging to groups that are socially or economically disadvantaged (including, for example, employees at lower salary levels, employees who face sexual harassment and may face isolation, fear for their safety or other emotional barriers to coming forward with their EEO claims, employees geographically remote from areas where private counsel knowledgeable in federal sector employment law are readily located, and LGBTQ employees who may have to contend with “coming out,” publicly in order to challenge discrimination in the workplace) are often those most in need of the support and representation of their unions. For these employees, the meaningful choice of a union representative may make the difference between pursuing an EEO complaint and being forced to endure illegal discriminatory mistreatment in the federal workplace.

Fourth, loss of access to union representatives in the federal sector complaints process risks further burdening the Commission, in several respects. Commission policy promotes settlement at all stages of the complaints process. See, e.g., 29 C.F.R. § 1614.603; MD-110, Chs. 3, 12. Union representatives, through their knowledge of agency internal politics and agency-level personal connections, are often well-positioned to seek resolution of complaints early in the complaints process. Exclusion of such union representatives would inhibit settlement and result in additional EEO complaints being litigated, burdening the Commission. Union representatives are a crucial resource for complainants, many of whom are in no position to be able to afford private counsel. Loss of union representation will result in more complainants who are not well-versed in the federal sector complaints process proceeding pro se, with resultant additional burdens on the Commission’s administrative judges and more difficulty in those complainants having a fair opportunity to seek redress in the federal sector hearings process.

Finally, the Commission’s longstanding policy is that federal agencies are to serve as “model workplaces” in the context of discrimination law. See, e.g., MD-110, Ch. 1, §§ I, III.B. A new rule excluding a knowledgeable corps of representatives committed to strongly advocating for federal workers in workplace disputes from representation of complainants in the federal sector hearings process stands in direct contradiction to that policy, to the detriment of federal employees.

NELA urges you not to finalize this rule. We thank the Commission for its consideration. If you have questions or wish to discuss these matters please contact Laura Flegel at lflegel@nelahq.org or (202) 898-2880.

Sincerely yours,

Laura M. Flegel
Legislative & Public Policy Director
National Employment Lawyers Association