EEOC Official Time Rule Update

NVP Lannan, myself, Jackie and Andy meet with the policy director Rob Shriver who is a friend to us and Tim Curry at OPM on yesterday. We had the discussion with him and he agreed to advocate for us and is doing so.

I have had staff to analyze the article and I wanted to share that with you.

The GovExec article seems to suggest that the EEOC OT rule is dead. I would not count on that being the case. The Govexec article implies that the reason the rule hasn't been published yet is the Biden order to the Office of the Federal Register not to publish certain midnight rules.

Biden's order is effective for agencies that are under direct Presidential control, but the EEOC is an independent multi-member semi-adjudicatory agency. Such independent adjudicatory agencies maintain their independence from direct Presidential control, and a majority vote to approve the anti- union is likely to be considered legally effective. What appears to be going on right now is a game of chicken between the EEOC and the Administration. The EEOC does not control the Office of the Federal Register. The Administration does. The Administration is using this administrative authority over the Office of the Federal Register to try to stop physical publication of the rule, but such administrative authority does not confer legal authority.

At some point, the three person EEOC majority may seek legal action to force publication of the rule in the Federal Register. Since a majority of the commissioners by a 3 - 2 vote approved the rule, unless they change their mind and reverse themselves, publication will eventually be required. The reality is that the Republican majority still effectively controls the EEOC! They still have the majority of votes. This is based on our discussion on yesterday.

But we're pursuing all possibilities open to stopping the anti- official time rule, including Congressional Review Act procedures, and appropriations law restrictions on enforcement of the rule.

Thanks,

Everett Kelly AFGE President