The Supreme Court’s 6-3 decision to overturn Roe vs. Wade on June 24 holds potential ramifications for agency employees across the country, such as the need for some feds to travel across state lines to obtain an abortion.

There are approximately 770,000 federal employees in states that already have abortion bans or are expected to move quickly to enact abortion bans following the decision, according to estimates from the Department of Justice Gender Equality Network (DOJ GEN).

The Office of Personnel Management issued a June 27 fact sheet reminding federal employees that they can use sick leave to get medical care, including time spent traveling to obtain that care.

Additionally, agencies can grant advanced sick leave to employees who haven’t accrued enough — and that applies to travel time associated with sick leave. The policy also covers federal employees taking family members to medical appointments.

“This may include, for example, providing transportation and/or accompanying a family member to a health care provider’s office or to a hospital or other health care facility,” OPM stated.

Although OPM’s reminder did not specifically mention abortion, the federal sick leave policy includes reproductive health services.

But some groups, like the American Federation of Government Employees (AFGE), are calling on the federal government to go beyond sick leave to provide paid administrative leave to cover health care services.

“The federal government, as a model employer, must immediately agree to provide paid leave and cover the travel costs of any federal or D.C. government employee who must leave their state of residence in order to obtain an abortion,” AFGE National President Everett Kelley said in a June 25 statement.

Relying on the existing sick leave policy will “disproportionately harm women and other employees who need to travel for abortion care,” Stacey Young, the president of DOJ GEN, told Federal News Network.

The group describes itself as an “employee-run organization” with 1,150 members that has advocated for gender equity and equality at the Justice Department since 2016.

“You shouldn’t have to use more sick leave now that states are banning abortion,” Young said. “The federal government can mitigate the harm by allowing employees to use administrative leave for travel, which will not require employees to dig into their limited sick or annual leave more than they already need to. The government can also pay for public servants’ travel, in same way that private employers across the country are already doing.”

Young also pointed to how agencies provided employees with additional paid time off so they could get vaccinated against COVID-19.

“We think that the administration would need to figure out how employees could request administrative leave without having to disclose their need to an immediate supervisor or someone else in their office,” Young added. “Privacy measures are paramount when it comes to reproductive health care.”

The White House did not respond to a request for comment on whether it was planning to provide federal employees with additional paid leave and covered travel expenses.

There’s another caveat that affects federal workers seeking to obtain abortions: Currently, the Federal Employee Health Benefits (FEHB) Program does not cover the cost of abortion services.

But that’s something House Democrats are trying to change. The House Appropriations Committee’s fiscal 2023 financial services and general government bill includes a provision that would remove the FEHB ban on abortion coverage.

Although House appropriators included the provision in the draft spending bill last year, too, it didn’t make it into the final version. The committee approved the 2023 spending bill on June 24, but it still has to make it through both the full House and the Senate, which could mean more revisions to the legislation.

Lawmakers will likely need to overcome the Hyde amendment to remove the FEHB ban on abortion coverage. The Hyde amendment is a standing legislative provision that bars the use of federal funds to pay for abortions, except in cases that endanger the life of the patient, or if the pregnancy arises from incest or rape.

Meanwhile, Young from DOJ GEN said the Hyde amendment should not be a factor in providing paid leave and covering travel expenses for federal employees seeking abortion services.

“For decades, the Hyde amendment has placed undue obstacles to federal employees’ access to reproductive healthcare,” she said. “But under its plain language, ancillary expenses that don’t actually pay for an abortion itself aren’t covered. So providing money to fund administrative leave, or even directly paying for employees’ interstate travel, I don’t think that would in any way run afoul of the amendment.”

Federal health care workers

Along with federal employees who may decide to obtain an abortion, agency leaders are also offering some guidance for federal healthcare workers. Attorney General Merrick Garland said the Justice Department is working to protect federal employees who provide reproductive services that are allowed under federal law.

“Federal employees who carry out their duties by providing such services must be allowed to do so free from the threat of liability. It is the department’s longstanding position that states generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law,” Garland said in a June 24 statement. “The Justice Department is prepared to assist agencies in resolving any questions about the scope of their authority to provide reproductive care.”

The Department of Veterans Affairs, which employs some of the government’s reproductive health care workers, said it is continuing healthcare operations consistent with legal authority.

“Access to gender-specific reproductive health services, including contraception and fertility services, is and will remain a critical component of veteran health care,” VA Secretary Denis McDonough said in a press statement. “VA will work with DOJ to ensure the full strength of the federal government is available to defend eligible VA employees if necessary. Our commitment to providing reproductive health care to the veterans we serve is unwavering. We recognize this is a rapidly evolving landscape, we are monitoring the situation closely and will remain in close contact with you.”

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Last month, the House passed a resolution that helps pave the way for its staff members to unionize. The measure essentially grants House staffers the same legal protections other federal employees have against retaliation if they do try to formally organize a labor union. Backers say it’s needed in part because of low pay and high turnover on Capitol Hill. But not everyone thinks it’s a good idea, including Suzanne Bates, a senior writer and researcher at Americans for Fair Treatment, a group that calls itself a union watchdog. Bates talked about what she sees as the downsides on the Federal Drive with Tom Temin.

Interview transcript:

Suzanne Bates: This is a new thing, organizing political staffers. We’ve seen it in some campaigns. And now we’re seeing it in some state legislatures. And then Congress is kind of the big prize, I think, at the end. And so our concerns are that this is already a very political space. Unions are political organizations. They spend a lot of money on politics, including elections and lobbying, $2 billion by their own accounting last year. So I think this is just going to make Congress more political than it already is. And it may lead to some unhappy staffers, not to mention members of Congress.

Jared Serbu: We don’t have a lot of experience with unionizing among members of legislative bodies. But there’s plenty of experience at the agency level. A lot of those folks are in our audience right now listening, and I think they would probably bristle at the idea that membership in a union is affecting their work or influencing their work decisions. So what’s the evidence that this would be a problem in the legislative branch?

Suzanne Bates: Sure, we’re already seeing, I mean, we’ve seen unions in federal and state agencies trying to use their positions to gain a foothold on policy issues. The latest example is the American Federation of Government Employees. One of their locals that represents EPA employees said that during collective bargaining, they plan to ask for a climate emergency declaration by President Biden. That’s, I mean, that’s not what we traditionally think of as collective bargaining, right? We think of it as being just about what the employee needs, their benefits, their pay, their working conditions. So when you add in sort of the public sector, it adds another layer of politics, and it becomes more complicated. And especially if you see something like that, where a union that represents people, members of the bureaucracy asked for an actual policy change in collective bargaining, what does that mean, for Congress, right, where you’re already talking about political staffers? There was sort of this idea that there was a dividing line between people who work for agencies, like you said, and then people who worked in political offices, because, members of Congress, members of state legislators need to be able to be more nimble, perhaps in their hiring and firing decisions. This is going to change that. I mean, we really don’t have that much experience with seeing unions in a politicized environment like this, it’s going to be very different, I think, than what you see at the agency level.

Jared Serbu: And the EPA example, you just used, I can totally understand, disagreeing with the position the union took, there in negotiations. And EPA is free to say, “You’re crazy. We’re not doing that. It’s not your position to make that request in the first place.” But it’s hard for me to get from there to public employees should therefore not have the right to organize. Draw that connection a little more closely, if you could?

Suzanne Bates: Yeah, no, I’m not saying public employees should not have the right to organize. And especially, I mean, again, at the agency level, I think we have a history of that now, we’ve seen sort of how it plays out. I do have some concerns. I mean, we work with public employees who’ve been harmed by their unions in some way. And so in a public environment, it changes the dynamics a lot, because you’re talking about people who can help elect the people who they’re bargaining with, right? And so it just changes the dynamic versus a private sector environment where you’ve kind of got this natural tension between the bosses and the workers, right. It’s just a different environment in the public sector. But we’re not saying you shouldn’t unionize the public sector. But I do think, again, the political staff, it’s just a next level. So what happens if you don’t like what your boss is doing? Do you threaten to primary the member of Congress? Do you spend money in a primary? I mean, we already know that unions do spend money in primaries trying to get rid of, or at least they fund organizations, for example, the Working Families Party, which is mostly Union funded. Primaries, members of Congress and members of state legislatures that are, who are not progressive enough for them. So what kind of bargaining chip does that create in Congress, right, where you’re talking about your boss is a member of Congress. And so are you going to use that leverage? I just think it raises questions and concerns that don’t exist again, at the agency level.

Jared Serbu: In the legislative branch, I want to address the issue of referring to these folks as political creatures. Some of them certainly are. I mean, you’ve got tons of examples of legislative assistants and communications directors, et cetera, et cetera, moving back and forth between the campaign and the congressional office. There’s a lot of people too, though, that spend their time on policy stuff, especially at the committee level. Could you could you solve some of the concerns that you have by, I don’t know, narrowing the right to unionize in some way so that people who are more directly involved in the political side of things are restricted? Or let me broaden the question out even further, is there anything in this House resolution that you would change to solve some of the concerns that you have while allowing some kind of organizing?

Suzanne Bates: Well, so we don’t know yet what the scope of collective bargaining will be. And so that wasn’t addressed in this resolution. So there’s still so many unanswered questions. So I mean, there’s some idea that we won’t see bargaining over wages or benefits. So what will they bargain over? So I think if you have a very narrow scope, then potentially, but maybe something besides like, unions, again, are just such political organizations at this point, and where we are in America, that I just can’t picture introducing unions into the legislature and not having them create more tension and a more deeply partisan political atmosphere. So like, you’re talking about the committee staff versus an office staff, right. They’re also hired by political parties to run those committees. It changes, depending on who’s in control of the of the legislature at that time. So they’re political, I mean, that’s their function. Their function is to answer to political partisan members of Congress. And so what will it mean to introduce, again, a deeply partisan political organization into that dynamic? Will it change, if the Republicans take control of the House, will the unions not be invited in anymore? I mean, I think there’s just so many questions that are still unanswered about how this would even work.

Jared Serbu: The main rationale that’s been offered for why this needs to happen is really around wages. Congressional staff wages are incredibly low for the market that folks are expected to live in there. Are there other ways to solve that problem besides unionization?

Suzanne Bates: Yeah, absolutely. Well, that’s, I think, really the wages were really terrible. The fact that they had to set a floor at $45,000. And that’s gonna raise a lot of people’s salaries, just tells you that it’s kind of considered a stepping stone right to other jobs that pay better. It ends up being a lot of sort of young staffers, but I mean, I think most people think they deserve a fair wage, right. And unions are one way to get there. That’s what the unions want. But again, are they even going to be able to bargain over wages? That’s not even determined at this point. So are there other ways? Yeah, look, they just got a raise without unions, right? They kind of publicly went out there. They have these Instagram accounts that people have created to air some of their grievances. It sounds like some sexual harassment problems are a real issue in Congress. I think we’ve known that for a long time. There probably needs to be a better way to deal with those. But I think when they take these things to the public, especially this press, there’s so much media around them. And they’re, I think, really interested in what’s going on on the Hill. They have a sympathetic audience. And they’ve clearly been able to put pressure on their bosses and they’ve gotten a raise. And I think that that can happen again. Unions are not the only way to do this.

Jared Serbu: Suzanne Bates is a senior writer and researcher at Americans for fair treatment. You can find his interview at Federal News network.com/federal Drive

The Equal Employment Opportunity Commission is set to increase in-office work for union-covered employees starting June 13, but the union representing those workers is pushing back against the agency’s plans.

The American Federation of Government Employees, which represents 1,400 EEOC employees, said the agency made changes to its COVID-19 safety plan without completing union negotiations.

Moving from one day up to two days per week in the office has been EEOC’s plan for bargaining unit employees since early May, but in response to the lack of negotiations, the union filed a fourth unfair labor practice (ULP) complaint on June 8 against the commission.

“While the plan states that EEOC workplaces should not be more than 25% occupied during periods of high community transmission, the agency contradicted this agreement in a message sent to employees. This unilateral change is substantially impacting working conditions, including the health and safety of the workplace, as exposure incidents are occurring in numerous offices, including those in high transmission areas,” AFGE wrote in a statement.

Rachel Shonfield, AFGE president for council 216, said in an interview with Federal News Network that 64% of the agency’s field offices were in either high or medium COVID-19 transmission levels.

“When the agency is trying to push to two days, it just isn’t a safe time to do that. There are really problematic conditions,” she said.

Frontline EEOC employees in the union are the last group of the agency’s employees to return to an office setting. Previously, senior leaders, supervisors and managers returned to the office on a similar timeline, starting at one day per week for the first month, then moving up to two days per week.

AFGE recommended bringing EEOC union employees back to the office in a phased approach based on local COVID-19 transmission levels, but the union said the agency implemented a generalized return-to-office plan without completing negotiations.

Shonfield said she’s concerned about the agency wanting to bring all employees back to the office, regardless of whether they have public-facing duties. She said it’s critical to get an agreement and wants employees to remain at only one day per week in the office due to rising COVID-19 levels in some areas.

“Our bargaining unit is very committed to carrying out our duties that put in place the civil rights laws that we enforce, and we’ve been doing that effectively for two years remotely,” Shonfield said. “We have a plan for how we could offer some services in person for members of the public who need to come in. There’s a way to do that safely and still only have folks coming into the office one day and possibly more if they have public facing duties that need to occur in the office.”

EEOC Communications Director Victor Chen told Federal News Network that its COVID-19 coordination team continuously monitors transmission rates of the virus in communities at its headquarters office and its 53 field offices across the country. The team updates EEOC employees every week.

“When community levels are high in the county where an EEOC office is located, all EEOC employees, contractors and visitors are required to wear masks, regardless of vaccination status,” Chen said. “Individuals who are not vaccinated are required to follow EEOC’s screening testing program.”

EEOC said it also follows governmentwide health and safety guidance, monitors local COVID-19 conditions and requires masks in the office in counties with high transmission. The agency is following the lead of the Safer Federal Workforce task force, which last week clarified and added new guidance on governmentwide COVID-19 policies.

“Per the [task force’s] current guidance, occupancy limits no longer apply to federal workplaces. Previously, occupancy limits were based on CDC’s community transmission rates, which are now obsolete,” Chen said. “The [task force] requires federal agencies to review community levels weekly to determine current safety protocols.”

Shonfield also wrote two letters in the last two weeks to EEOC Chairwoman Charlotte Burrows about health and safety concerns in increasing to two days a week of in-person work.

“The agency has received the union’s letter and the issues the union raised are being carefully considered. The agency currently has no plans to change the reentry timeline for staff, but will continue to closely monitor local conditions and public health guidance and respond accordingly,” Chen said.

Chen added that EEOC headquarters and field office staff are able to physically distance with the current one-day-per-week schedule and that will still be possible once staff begin returning to the office two days per week.

“In-office days are staggered and, where necessary, staff schedules have been adjusted to allow for distancing,” he said.

But telework also works well in many cases, the agency said, specifically for its mediation program – an alternative way that the agency resolves workplace disputes. In a June 1 press release, EEOC reported that its virtual mediation program has been “highly successful.”

“EEOC mediators found that online mediation is easier to use and more flexible than in-person mediation, achieved similar or better quality and value of settlements for both parties and increased access to justice for charging parties,” the press release stated. “Participants cited flexibility, convenience, cost savings and a ‘safe space’ as reasons for preferring online mediation.”

Currently there is no further information on the agency’s reentry plan after it expires on Dec. 31, but EEOC will use its reentry procedures this year to inform future plans for in-office work. EEOC continues to communicate with the union and considers AFGE valuable in ensuring a safe and successful return to physical offices, Chen said.

Shonfield, though, continues to push for more response from EEOC leaders to work through negotiations, which are currently on hold.

“The ball is in the agency’s court,” she said.

The IRS announced Thursday that for the final 6 months of 2022, the standard mileage rate for business travel will be 62.5 cents per mile — up 4 cents from the rate the IRS set at the start of the year.

This new rate goes into effect July 1, and applies to workers who use their own vehicles for business travel.

“The IRS is adjusting the standard mileage rates to better reflect the recent increase in fuel prices,” IRS Commissioner Chuck Rettig said in a statement Thursday. “We are aware a number of unusual factors have come into play involving fuel costs, and we are taking this special step to help taxpayers, businesses and others who use this rate.

The IRS normally updates the mileage rates once a year in the fall for the next calendar year.

The change comes after the National Treasury Employees Union pressed the IRS to approve the increase, considering the Russian invasion of Ukraine in February and the resulting higher gas prices.

The federal government’s mileage reimbursement rate for federal employees and contractors matches the amount set by the IRS as the maximum rate allowed to be deducted as a business expense.

The IRS set the rate to 58.5 cents per mile — a 2.5 cent increase from the year prior — but Reardon, in a letter to Rettig, said the sudden uptick in gas prices warrants a mid-year adjustment in the reimbursement rate.

“Given the current situation, I urge you to make a mid-year adjustment to the mileage reimbursement rate this year to reflect the actual costs an employee will pay to operate their privately owned vehicle while traveling to perform official business,” Reardon wrote. “This would save federal employees from having to pay out of their own pocket for the increased travel expenses incurred in their duties as IRS revenue agents and officers.”

Reardon said some federal employees whose jobs require frequent travel during the workday, including bank examiners at the Federal Deposit Insurance Corporation, are particularly hit hard by current gas prices. A higher reimbursement, rate, he added, would also provide relief for many private-sector employees.

“I hope you will do whatever you can to see that all Americans who must depend on their cars to perform their jobs get some relief, including those who work for the federal government,” Reardon wrote.

While the IRS usually sets its reimbursement rate to cover the entire calendar year, the IRS has previously made some mid-year adjustments.

The IRS made its most recent mileage reimbursement in December 2021, based on an annual study of the fixed and variable costs of operating a car.

IRS management once again covered by parts of union-negotiated contracts

Meanwhile, the IRS is telling its non-bargaining unit management workforce that portions of its union-negotiated labor contracts once again cover them.

The IRS, in a May 13 memo to all IRS managers, outlined “pass-through” provisions of its 2022 National Agreement with NTEU, which will also apply to agency managers and non-bargaining unit employees.

The pass-through provisions cover a wide range of topics, including performance awards, promotions, telework, travel, sick leave, family leave and annual leave.

IRS Chief Human Capital Officer Kevin McIver in the memo directs managers to bring any questions about the pass-through provisions to the agency’s labor and employee relations specialists.

The Professional Managers Association, which represents IRS management, said Tuesday that the IRS suspended pass-through provisions in 2019.

The PMA said the newest memo not only restores the practice of pass-through provisions, but also reinstates all prior pass-through memos.

PMA Executive Director Chad Hooper said the memo represents “a commonsense change that will improve management and eliminate inefficiencies.”

“PMA has long advocated for uniformity in employee treatment. The previous system required managers to learn different procedures for different employees and ensure the proper procedures were followed each time a basic issue arose. This left significant room for error and mismanagement and created frustration for employees,” Hooper said.

Among the provisions in the 2022 NTEU national agreement, IRS managers are entitled to a per diem when on temporary duty, and more than 50 miles away from their official duty station or residence.

Another pass-through provision makes IRS managers eligible for a child care subsidy if their annual family income is less than $90,000.

Managers are can be granted administrative time to receive a COVID-19 booster shot, if those shots aren’t made available at their official duty station.

Managers and non-bargaining unit employees would also be covered in any Reduction-in-Force mitigation strategies, including early retirement and buyout offers.

NTEU President Tony Reardon said Tuesday that agency leaders often make bargaining unit provisions “available at all levels up and down the pay scale” to improve recruitment and retention.

“It is no surprise that some of the benefits that NTEU negotiates on behalf of frontline federal employees are extended to their supervisors, too,” Reardon said. “Our chapter leaders frequently hear from managers outside the bargaining unit who are grateful for provisions in our contracts like telework, alternate work schedules and other benefits, because it prompts management to grant them to employees not represented by NTEU as well.”

Hooper said that since 2019, agency managers have had to handle basic employee issues in different ways, depending on if the employee was in the bargaining unit.

“Something as simple as processing a sick leave request was subject to varied procedures based on an employee’s bargaining unit status,” Hooper said.

Hooper said the new memo makes official all portions of the union contract that apply uniformly to the entire IRS workforce.

“It establishes consistent and uniform rules for employees regardless of bargaining unit status–increasing efficiency and eliminating confusion,” Hooper said. “Conversely, the pass-through memo ensures managers only need to learn and execute one process and one set of rules,” Hooper said.

Both the American Federation of Government Employees and the National Treasury Employees Union hope to help the two new bargaining units resolve some of their biggest pain points.

DHA and BLM face workforce challenges such as large numbers of remote workers and staff attrition following an office relocation.

At DHA, housed under the Department of Defense, employees elected AFGE to be their sole union representative. AFGE received 65% of the vote to represent non-professional staff and 61% of the vote to represent professional staff.

The agency, composed of about 2,200 employees, has limited face-to-face interactions, AFGE said. But that’s the reason the union called the election a “big win.”

“The DHA headquarters unit is spread out across the country and is mostly remote. The hurdles in organizing a dispersed workforce, working from home, who mostly don’t know each other, are significant,” AFGE wrote in a May 23 press release.

AFGE said an organizing model focused on having one-on-one conversations about workforce issues contributed to the union’s election win.

“We visited hundreds of workers at home and got them to commit to building a union based upon their own interest,” AFGE Membership and Organization Director David Cann stated. “They talked about building power and having a voice on the job. The DHA workers got engaged based upon the individual issues they cared about.”

DHA started as a small agency composed of civilian healthcare workers at D.C. military hospitals, but the workforce size will soon escalate significantly, AFGE wrote. DoD plans to transfer other healthcare workers to DHA later this year. The agency will then have about 65,000 civilian workers across the Navy, Army and Air Force.

If the union continues to win elections with DHA, AFGE said it could represent tens of thousands more workers in the coming months.

Another BLM office votes for union coverage

Employees at the headquarters office for the Bureau of Land Management also elected to receive union coverage, but for different reasons.

BLM workers at the Interior Department voted 116 to 20 for the National Treasury Employees Union to act as its exclusive representative, the union announced in a May 26 press release.

Employees organized in part because the Trump administration relocated headquarters facilities in 2020, under a larger effort to move over 300 positions to Colorado and other western states. As a result, about 90% of the workforce left the agency.

NTEU National President Tony Reardon said the decision to relocate headquarters was “unsettling” for many BLM employees.

“Workers were forced to choose between uprooting their families or losing their jobs,” he stated.

Interior Secretary Deb Haaland eventually reversed the 2020 decision and maintained the Grand Junction office for BLM.

Those approximately 200 headquarters employees comprise the second BLM bargaining unit with NTEU, joining Santa Fe, New Mexico, which the union has represented for two years. The Santa Fe unit is currently in the process of negotiating its first collective bargaining agreement, NTEU said.

“This organic, employee-driven approach is the reason for the growing labor movement in this country,” Reardon stated. “Whether you are public or private sector, workers know they are stronger together.”

BLM, as well as DHA, represent part of a larger and growing effort under the President’s Management Agenda to advance federal union representation. The PMA plans to give federal employees more opportunities to join a union and have an effective voice in the workplace through union coverage.

By empowering the federal workforce, agencies can “remove barriers and obstacles to worker organizing in the federal workplace and advance positive and productive labor-management relations,” the PMA stated.

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A section in the 2023 Defense Department budget request would change how DoD manages its civilian workforce. The American Federation of Government Employees thinks it could lead to wholesale reductions in the civilian ranks. For what’s going on, the Federal Drive with Tom Temin turned to AFGE’s Defense Department legislative representative John Anderson.

Interview transcript: 

John Anderson: There is a massive contradiction in the president’s budget between, and I found it very positive when I saw the sections about strengthening the federal government workforce, and improving the hiring process. Then buried in the technical appendices is a reversion back to some very failed practices that occurred over the past decade where the workforces funding levels were disrupted through the operation of personnel caps. Now, the way a personnel cap operates is that funding that has been set aside and budgeted for the civilian workforce, once a civilian gets promoted, retires, leaves for another job, that manager who is responsible for the function has to worry about keeping that position, because it becomes ripe for the takings by the controller. And the controller doesn’t really care that much about total force management or the civilian workforce hiring. That’s the responsibility of the undersecretary of personnel readiness to be the champion for that. And as you have an incumbent as a political appointee, performing the duties of undersecretary of Defense for Personnel and Readiness, and they either have been delays in their appointments, or have not really gotten up to speed and being a vigorous advocate of this function. The Comptroller, given their normal practices will just say, this is an easy way for me to harvest some dollars. And so they will take the money, if it’s a vacant position, if it’s a vacant position, they don’t have to do a rest. So it completely eludes any kind of congressional oversight. And then they wonder why this is the front ends of problems with the hiring process that most people don’t really get to. They just look at the back end, once a physician is established, and they don’t look at the front end of when a person leaves a position and a vacancies in place. And then it’s a free-for-all to protect that position.

Tom Temin: All right, so you have written to the chair of the House Appropriations Committee, defense subcommittee, and to Sen. [Jon] Tester, who is chairman of the Senate Appropriations Committee Defense Subcommittee, the two big defense subcommittee folks, and said, you’re citing section 129 of title 10, which is the overall kind of statute for civilian employees in the Defense Department. And you said that the provision in the request for next year eviscerates that. So tell us what 129 does, and how this request from the Biden administration eviscerates it?

John Anderson: Okay, 129 specifically mandates that the civilian workforce has to be solely managed, based upon those full force management principles in a separate section 129-A, which is separate from 129. And it is to be managed solely based on the full force management principles, the workload that’s to be performed and the funding provided by Congress. Now, the total force management policies that are supposed to be followed, they are the responsibility of the undersecretary of Defense for Personnel and Readiness to be the champion of those and advocate for them. And those policies requires the department to look at the civilian workforce, and the functions they perform holistically. Together with the capabilities provided by the active, the reserves component, military, and the contractor workforce. And to look at things from the standpoint of costs and risks, and the elements of risks deal with readiness, lethality, stress on the military force, and operational effectiveness. Now, the thing that really was alarming was not just this technical change, but the performance of the department. Very various budget hearings and posture hearings, before the House Armed Services Committee, Senate Armed Services Committee, and in particular, the Senate Appropriations Committee and the House Appropriations Committee, subcommittees of defence. And in particular, in a the hearing before the House Appropriations Committee Subcommittee on Defense, when Ranking Member [Ken] Calvert, did his perennial, he has done for the past 15 years saying, “Let’s reduce the civilian workforce by some arbitrary number, in this case, since military end strength is going down, you should have proportionately reduced the civilian workforce.” And he had that interview in the record without objection. And there was no vigorous rebuttal, consistent with the department’s previous budget, posture briefings and everything else. Instead, they met it with, “Oh, we are always ready to become more efficient.” Now, when you look at past Government Accountability Office audits of the department when they have tried to become more efficient, by cutting the civilian workforce, they found that essentially, the department just shifted the requirement done by civilians to higher-cost contractors, or to military to the detriment of readiness and [the force].

Tom Temin: We’re speaking with John Anderson, he’s DoD’s legislative representative at the American Federation of Government Employees. So the key sentence here is during the current fiscal year, which would be 2023. And this is from the request, the civilian personnel of the Department of Defense may not be managed solely on the basis of any constraint or limitation in terms of man years, end strength, et cetera, et cetera. So you’re interpreting this to be a gambit to just make wholesale cuts to the civilian workforce?

John Anderson: Yes, because of the injured position of the word “solely” suggests that well, they primarily may be managed based on that. And in fact, that provision, before it was changed by the appropriators to conform to the title 10 section 129 and 129-A, in fact, was interpreted that way. It was interpreted to say, we can manage the caps and in fact, that’s the way we do it. And as a result, you had massive levels of basically the department coming in and saying we’re going to spend X amount on the civilian workforce, and then they would not spend that they were shifted through contractors, essentially.

Tom Temin: So the question now is, have you gotten any response from the appropriators here? I mean, this was section 8008, in the appropriations request, out of probably 12,000. And I can guarantee no member of Congress can name all 12,000. So were they aware of it? Do they agree with you? What’s the reaction been so far since this letter?

John Anderson: Well, I’d say on the Democratic side, the reaction of the appropriators has been to thank me for pointing out that disconnect. There has been some follow up, I understand, with the department to try and find out just exactly where this came from. I have a sense that they haven’t been answered yet. And my instincts are the department is probably trying to figure out how it got in there.

Tom Temin: Right, because it did come from a Democratic administration, too.

John Anderson: Yeah. Now my hypothesis is, is that in the bureaucratic coordination process, this is a highly technical provision, it’s possible, this is my speculation, it’s possible, it came from the comptroller. And as the P&R – the personnel and readiness people, because that function was weakened in the prior administration, and the current incumbent has not really from my perspective, really vigorously taken on that function – that they missteps. That’s the benign interpretation of this. Now, a more nefarious interpretation is this is deliberate. I doubt that, I think it was probably a bureaucratic glitch. I’d like to give him the benefit of that doubt. But it also reflects the fact that the performance of the department during budget and posture hearings in this area has not been very good. And they did not prepare their senior leaders when Calvert gave him something that would be very easy to answer if they just read their own documentation in the past that they’ve done on the civilian workforce to answer him and say, “Actually, workload is going up, operational demand is going up. The national defense strategy does not say that military end strength should go down. The only reason it’s going down is we’re not able in this current job market, to get people to agree to enlist at the level of quality that we would like to have. Now the people that were closest to getting that direction were the Army, so I applaud the way they performed in the hearings, but in general, the department overall has not really adequately rebutted Ranking Member Calvert. If they just read their own documentation, it was easy for them to do so.

Tom Temin: So you’re confident this will come out?

John Anderson: I certainly hope so. And I’d say based on, and I’ve also had responses from some Republicans too and I commend Sen. [Thom] Tillis on the Senate Armed Services Committee side, because he seems to get when the undersecretary of Personnel and Readiness testified before the Personnel Subcommittee of the Senate Armed Services Committee and didn’t seem to be aware of his total force management responsibilities very well and had to be kind of reminded that he has those responsibilities, I think that both the Democratic side of the Senate Armed Services Committee and Sen. Tillis in particular, were very good on this issue of military end strength reductions. He understood that it had nothing to do with – in fact, he was concerned. Is this driven by some budgetary restraints from the comptroller or is this based on the national defense strategy? He gets it and I’m very, very pleased with the way he follows up.

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• The U.S. Patent and Trademark Office has fully reopened all its offices to employees. Those include its headquarters in Alexandria, Virginia, Dallas, Denver, Detroit and San Jose. This marks the third phase of USPTO’s office reentry plan. The agency has also resumed some in-person events and appointments for the public. USPTO is following COVID-19 guidance from the Centers for Disease Control and Prevention, and only requires visitors to wear masks in locations with a high level of community risk.

• Employees at the Bureau of Land Management’s headquarters vote to receive union coverage. In a 116 to 20 vote, BLM workers elect the National Treasury Employees Union to represent them. 200 employees are now the second BLM bargaining unit with NTEU. They join their counterparts in Santa Fe, New Mexico, which the union has represented for two years. NTEU says employees organized in part because the Trump administration relocated facilities in 2020. Interior Secretary Deb Haaland has since reversed that decision.

• The National Federation of Federal Employees calls on the White House to give all federal wildland firefighters an across-the-board pay raise. Through the Infrastructure Investment and Jobs Act, some firefighters’ salaries will go up either by $20,000, or by half of their base salary. But, the legislation only applies to areas where it’s difficult to recruit and retain wildland firefighters. NFFE says critical staffing shortages for firefighters exist nationwide. The union is asking the administration to expand the act to cover all wildland firefighters.

• The State Department’s inspector general’s office raises favoritism concerns within Foreign Service promotion boards. Employees at an office within the State Department’s human resources bureau frequently awarded family members, friends and acquaintances with paid positions on Foreign Service promotion boards, according to a recent IG report. The IG’s office found individuals closely connected to employees at the Bureau of Global Talent Management’s Office of Performance Evaluation served on Foreign Service Selection Boards every year from 2014 to 2021 — in some cases, multiple times. Some of these individuals were paid tens of thousands of dollars. The IG’s office began its work in 2020 following a whistleblower complaint. (Federal News Network)

• A crucial panel for federal employees now has, not only a quorum, but a complete roster. For the first time in years. After months of hold-up, the Senate has confirmed Cathy Harris as the third member of the Merit Systems Protection Board. She’ll also be the board chair. The vote was 48-46 along party lines. Two other members were confirmed last month, after the board went vacant for nearly three years. Board members must decide on some 3,500 cases representing appeals to administrative law judge decisions lodged by agencies or employees.

• Federal law enforcement agencies will take a close look at recruitment, hiring, promotion, and retention practices under a new executive order. President Joe Biden’s EO on effective, accountable policing directs the Office of Personnel Management to convene an interagency working group to strengthen federal law enforcement personnel practices. It directs OPM and agencies to pay particular attention to promoting an inclusive, diverse, and expert law enforcement workforce. The order calls for the working group to publish an action plan within the next year.

• Top Republicans on the Senate Finance Committee are telling the IRS to get ahead of their paper-based workload for next-year’s filing season. Ranking Member Mike Crapo (R-Idaho) and committee member Chuck Grassley (R-Iowa) urge the IRS to put 2D barcodes on paper tax returns for next year’s filing season. The National Taxpayer Advocate says this technology would greatly reduce the work IRS employees need to put into processing those returns. Paper tax returns make up a small fraction of the total number of returns the IRS receives in a year, but have led to backlogs at the agency.

• Agencies looking to deploy 5th generation wireless technology have some new security guidance. The 5G Security Evaluation will help agencies think through the all-important “authority to operate” process. It was developed jointly by the Department of Defense and the Cybersecurity and Infrastructure Security Agency. The five-step process lays out how agencies can evaluate their 5G systems and identify potential security requirements. Vincent Sritipan is section chief of CISA’s cyber quality service management office. “The key thing is, there has to be a common way to look at this and understand the policies,” he said. “And we’re not talking about new ones, but existing things like the risk management framework.” (Federal News Network)

• Defense industry groups are advocating for a larger Defense budget for 2023 after seeing current inflation numbers. The Aerospace Industries Association is asking Congress to keep funding for the Defense Department at three to five percent above inflation levels. If current rates stay as they are, then Congress will need to bump up the president’s defense budget request, which only assumes about a two percent rate of inflation. The National Defense Industries Association is advocating for the same considerations. Both organizations are also asking Congress to deliver funding on time to reduce waste.

• Six companies are walking away with prize money for 5G innovations from the Defense Department and the National Telecommunications and Information Administration. The challenge is a multi-stage prize competition for the adoption of 5G open interfaces, interoperable subsystems and other technologies for an open 5G ecosystem. The companies will now move to stage two interoperability testing.

• The Veterans Affairs Department is putting a call out for innovators to help them develop new suicide prevention strategies for veterans. VA Secretary Denis McDonough said that they need to use every tool available in order to end veteran suicide. Submissions from 40 teams will be selected receiving awards ranging from $100,000 to $3 million. Participants will have access to a collection of open data, surveys and reports on veteran suicide prevention as they write their concept papers. Those interested should submit concept papers to VA by July 8.

• The FCC hires 14 companies to help with their next phase of IT modernization. The FCC was one of the first agencies to move its infrastructure to the cloud. Now it’s embarking on an application modernization effort. To do that, the FCC awarded 14 companies a spot on its Application Development Support Service blanket purchase agreement. The five-year contract has a $203 million ceiling. Under the IDIQ type contract, the FCC is asking these 14 winners to provide program and project management support, software and application development and support and enterprise micro-services development. The goal under this BPA is to improve the FCC stakeholders’ experience in meeting business requirements and improving the coordination of service delivery with other FCC contractors.

• The Senate pushes forward a new bill to try to prevent organizational conflicts of interest among government contractors. The Senate Homeland Security and Governmental Affairs Committee passed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act Wednesday. The legislation is in response to concerns over McKinsey and Company’s alleged conflict in advising the FDA and drug companies at the same time. The new bill would require agencies to identify potential conflicts for specific contracts early in the process. Federal contractors would be required to disclose other business relationships with entities that conflict with the specific work that an agency has hired them to do.

• The Energy Department is launching a pilot to decarbonize four of its 17 National Laboratories. DOE labs in Idaho, Colorado and Washington, as well as the National Energy Technology Laboratory with locations in Pennsylvania, West Virginia and Oregon, will participate in the program. The Net Zero Labs Pilot Initiative was created to meet the Biden administration’s goal to reach net-zero greenhouse emissions by 2050. Energy Secretary Jennifer Granholm said that they are leading by example by tackling some of the most energy-intensive and hardest-to-decarbonize federal facilities.

NTEU is concerned about FLRA’s efficiency as the authority faces a backlog of 314 cases. In an effort to improve efficiency, NTEU submitted a proposal that would limit hearings only to organizations affiliated with the federal sector.

FLRA manages the federal-labor relations program and resolves agency and union disputes.

The vague wording of the authority’s regulations gives groups unaffiliated with the federal workforce an opportunity to submit requests, weakening the voice of the federal workforce, NTEU National President Tony Reardon said in a May 17 press release.

“During the last administration we saw how private, anti-union forces outside of government misused the FLRA,” Reardon said. “The FLRA is supposed to be an independent, neutral arbiter of labor-management bargaining disputes in the federal workforce, not a playground for ideologues who want to weaken federal workers and their unions. We respectfully request the FLRA amend its regulation and ensure that its own process remains focused on what is best for the federal government and its workers, not political interlopers with an agenda.”

Federal News Network reached out to FLRA and the authority declined to comment, since the petition is still pending.

The ambiguous language unintentionally opens the floor to other types of petitions.

“It is clear from the structure and purpose of the statute that the phrase was not intended to extend to any and every ‘lawful association,’ including those that have nothing to do with federal employment labor relations,” NTEU stated in its May 16 petition to FLRA.

But former FLRA Member James Abbott said that although he agrees that some pieces of FLRA’s statute should be revised, some of those associations actually do have grounds to file requests.

“The reason for the regulation that allows interested parties to file a request for a policy statement is that every aspect of collective bargaining in the federal government is paid for by the American taxpayer,” Abbott said in an interview with Federal News Network. “It is important that outside agencies that are in essence representing the interest of the taxpayer should be permitted to request or comment on policies of the Federal Labor Relations Authority.”

Under the proposal, NTEU said FLRA could conserve its resources by denying requests outright without spending more time to reach a decision. The authority may also see fewer requests from unaffiliated associations in the first place.

But Abbott said that although many petitions are filed, very few are actually acted upon by the authority.

“The ones that are addressed are ones that raise issues or questions that have broad applicability and would actually preclude any number of grievances in the future,” Abbott said. “By clarifying the issue or question, the parties would have an answer to the matter that was in dispute before them. It would resolve many such cases so they would not have to be brought by federal unions as grievances.”

NTEU’s proposal comes in response to a couple of unaffiliated organizations getting an audience with FLRA in the past few years.

For example, NTEU said a request decision from Aug. 19, 2020, a dispute over official time for lobbying activities, exemplifies the types of cases that should not come to the authority.

At the 2020 hearing, FLRA Member Ernest DuBester dissented, saying the majority was “accommodating a request from an organization that is neither a union nor an agency subject to our jurisdiction.”

The petition also comes just after FLRA added a new member to its three-person panel. On May 12, the Senate confirmed Susan Tsui Grundmann in a 50-49 vote along party lines. She replaced Abbott, a former FLRA member.

But two other nominations for FLRA are currently on hold. The Senate Homeland Security and Governmental Affairs Committee deadlocked at a March 30 hearing over both Kurt Rumsfeld, President Joe Biden’s nominee for general council, as well as DuBester, who was nominated for another term as member.

The FLRA has not had a Senate-confirmed general counsel since January 2017, and did not have an acting general counsel between November 2017 and March 2021, Rumsfeld said.

“This has resulted in a significant backlog of unfair labor practice charges for which complaints could not be filed and litigated in the absence of a General Counsel, as well as a backlog of appeals from dismissals of ULP charges which could not be decided,” Rumsfeld wrote in his testimony.

Taking labor disputes directly to court

In a separate effort to promote government efficiency, NTEU is asking the Supreme Court to let some federal labor disputes go directly to court, instead of through administrative agencies.

“It is important that NTEU have the right, when necessary, to ask a federal judge to issue injunctions or declare certain executive branch actions unconstitutional, which agencies like the FLRA are not empowered to do,” Reardon said.

The union said courts of appeals incorrectly channel some district-court claims through an administrative process, rather than going straight to court.

The “lengthy process” leaves federal employees vulnerable to potentially illegal actions in the workplace, Reardon said.

“Courts are supposed to consider three guideposts to determine whether a claim must be channeled to an administrative agency: whether channeling ‘could foreclose all meaningful judicial review,’ whether a litigant’s claims would be considered ‘wholly collateral to a statute’s review provisions’ and whether the claims if pursued first before an administrative agency would be ‘outside the agency’s expertise,’” NTEU wrote in the May 16 proposal.

A recent case exemplifies the importance of the issue to the union, NTEU said. When the union challenged a May 2018 executive order, an appellate court declared that the union first had to pursue its claims on a case-by-case basis through FLRA.

“The Supreme Court has an opportunity to clarify the ‘channeling process’ and we urge it to do so in a way that protects the rights of plaintiffs to seek judicial relief,” Reardon said.

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• National Guard members on state duty can now unionize, thanks to a new Justice Department agreement. A 1978 law forbids military personnel on federal duty from unionizing, but labor unions in Connecticut filed a lawsuit against the DOJ and Attorney General Merrick Garland seeking the right to collective bargaining for National Guard members on duty ordered by the governor. DOJ settled the case on Tuesday. (Federal News Network)
• Among the General Services Administration’s workforce, 92.6% of employees agree that leaders are clear about office reentry plans. That’s compared with 74% governmentwide in the third round of pulse survey results. Deputy Administrator Katy Kale told Federal News Network she’s focused on frequent communication, transparency and honesty with employees about reentry. Along with pulse survey data, GSA uses other avenues like its emerging leadership program, and virtual coffee chats between leaders and employees, to get even more feedback. (Federal News Network)

• The Office of Personnel Management wants employees to know, there is help if they struggle with mental health. OPM is calling on agency managers to create a work environment free from mental health stigmas. Taking time off is not limited to just physical needs, employees can use sick leave for mental health as well. Mental health services are available to all employees and their families. Director Kiran Ahuja reminds employees where they can find support. “Agency Employee Assistance Programs, or EAPs, provide access to short term behavioral health services. Additionally, all FEHB plans offer comprehensive outpatient and in-patient mental health benefits.”

• Sailors are going through a turbulent time with mental health. Officials said there are a variety of factors hindering progress. The Navy said it is taking five to six weeks for sailors to get mental health assistance unless they are in suicidal situations. The service told lawmakers yesterday that the issue is partly due to the lack of mental health professionals in the Navy. The service is currently investigating a rash of suicides aboard the USS George Washington. There were three suicides on the ship in April alone. The Navy said it needs senior noncommissioned officers to be more hands-on with mental health to help lower ranks. (Federal News Network)

• The Defense Department is asking Congress for expanded authority to allow officers to opt out of promotion boards. Currently, most officers have two opportunities to promote to the next rank within a certain time limit or they must leave the military. The authority would allow the military services to allow officers to defer promotion even if they didn’t meet the criteria to promote on their first try.

• The Agriculture Department’s chief information officer wants to hire people with strong data skills, cybersecurity skillsets and who can “talk” to non-IT people. Agriculture CIO Gary Washington said it’s important to have people who can clearly communicate their needs, and on the flip side, make others feel like their needs are important. He said during an ACT-IAC web event Wednesday that if USDA wants to move forward on its President’s Management Agenda goals on customer experience, the department has to work with vendors who can help do that. (Federal News Network)

• It’s time to look again at the security and privacy of internet of things devices. To that end, the National Institute of Standards and Technology is looking for feedback to update its 2019 publication, “Considerations for Managing IoT Cybersecurity and Privacy Risks” or NISTIR 8228. NIST said there has been a lot of expansion on what IoT devices encompass and new research and threats over the last three years. Some of that feedback will come on June 22 when the NIST Cybersecurity for IoT Program hosts an event to discuss the IoT landscape and the team’s next steps.

• New cyber vulnerabilities forced the Cybersecurity and Infrastructure Security Agency to release a rare emergency directive. Agencies have until Monday to mitigate vulnerabilities in five products from VMWare that permit attackers to have deep access without the need to authenticate themselves. CISA issued a new emergency directive yesterday saying the vulnerabilities in VMware products ranging from its Workspace ONE Access to its Identity Manager to its Cloud Foundation, put federal networks and systems at immediate risk. VMware called the vulnerability critical in a posting on its website, giving it a score of 9.8 out of 10. Agencies must report its mitigation efforts in the Cyberscope tool that CISA runs by May 24. (Federal News Network)

• Democratic senators are asking the Federal Trade Commission to investigate a company that provides identity verification services to federal agencies. Senate Finance Committee Chairman Ron Wyden (D-Oreg.) is leading Senators Cory Booker (D-N.J.), Ed Markey (D-Mass.) and Alex Padilla (D-Cali.) in asking the FTC to investigate the vendor ID.me. The senators say ID.me made misleading statements about the facial recognition technology it offered to customers, including the IRS. The IRS earlier this year scrapped plans to require users to use facial recognition technology to verify their identities online. ID.me counts at least 10 federal agencies and 30 states as its customers.
• A new report from Government Accountability Office says that of the 30 federal programs intended to build climate resilience in Native American villages, most are hard for those residents to access. Programs that require participants to share costs with the government can be out of reach for small villages. GAO said having interagency and intergovernmental coordination could lead to more strategically targeted federal investments. The report has recommendations for the Bureau of Indian Affairs, the National Oceanic and Atmospheric Administration, the Defense Department, FEMA, the Department of Housing and Urban Development, and the Natural Resources Conservation Service.

• The Postal Service outlined plans to close and consolidate facilities across its delivery network. Postmaster General Louis DeJoy said USPS will consolidate network operations into Sort and Delivery Centers, with enough space and mail processing equipment to operate more efficiently than what its current infrastructure can provide. As part of this plan, DeJoy said USPS will close annexes around the country that increased costs and hamper efficiency. DeJoy said the overhaul of its delivery network will streamline how USPS delivers mail and packages in a way that will reduce costs and improve revenue. (Federal News Network)

• The Air Force’s Kessel Run project has always been based on the idea that DoD IT projects can get done a lot faster. A new acquisition strategy hopes to bolster that idea. Officials said the main idea is bring 21 different programs under a single DevSecOps framework. From there, they’ll embrace DoD’s new software acquisition pathway with five new programs of record.

• The Army Materiel Command is moving to a unified network where tactical and strategic communications, data networking and operations are in one network. This change comes amid a push to approach technology contracts as a service rather than making and maintaining everything in-house. Daniel Bradford, chief information officer for Army Materiel Command, said the Army can’t compete with industry for the necessary talent. Bradford said the unified network will have to be interoperable with other branches and with mission partners and allies.

With union negotiations still unresolved, the American Federation of Government Employees is calling on the Equal Employment Opportunity Commission to slow down its office reentry plans.

Approximately 1,400 union-covered EEOC employees can expect to begin partially returning to physical office spaces on May 16, answering the question of when the remaining fully remote employees will transition to hybrid work.

That comes after senior leaders, supervisors, managers and about 650 non-bargaining employees at EEOC returned to at least some in-person work in phases between March 28 and April 11.

The agency and the union were working on a reentry agreement called a memorandum of understanding (MOU) for EEOC’s union employees. But AFGE said the agreement was still incomplete when EEOC told its employees on May 5 that doors would open later this month.

In response, the union filed an unfair labor practice complaint regarding the agency’s return-to-office plans.

“We felt that we were close to a deal,” Rachel Shonfield, president of AFGE council 216, which represents EEOC employees, said in an interview with Federal News Network.

In an AFGE press release on May 9, Shonfield also said that she is “completely opposed” to bargaining taking place after reentry occurs.

“It doesn’t make sense to have reentry negotiations after reentry,” she said in an interview with Federal News Network.

The MOU outlined a phased reentry approach for EEOC, which would start with moving into the office for areas with low community transmission rates for COVID-19, then add in areas with higher transmissions rates week by week.

Shonfield said EEOC’s announcement to its employees did not include any mention of the phased approach.

In addition to the phased reentry, AFGE is trying to bargain for an orderly and neutral selection process for in-office work schedules, regular field office safety inspections, contactless intake of patrons and expanded telework and remote work flexibility.

But EEOC’s reentry announcement to its employees will cause issues in negotiations, Shonfield said.

“This action by the agency is already causing chaos by upending the safe and orderly processes that the union was in the midst of bargaining when the agency instead short-circuited negotiations,” she said in the AFGE press release.

For EEOC employees returning to the office on May 16, they will work in person for at least one day per week for the first month. Then in-person work will increase to at least two days per week. The two-day format will last through the rest of this calendar year, EEOC Communications Director Victor Chen told Federal News Network.

Reentry plans after this calendar year hang in the balance. So far, EEOC has made no decisions about telework, remote work or other workplace flexibilities beyond this December, Chen said.

The Dec. 31 deadline is “arbitrary,” Shonfield said. She recommended that EEOC use a “commonsense” telework expansion to allow employees the flexibility to come in only when they have public-facing duties, such as working with customers.

“A lot of other agencies are increasing telework from their pre-pandemic programs, but EEOC is offering just a short-term increase. It’s sort of like a mirage,” she said.

The days that employees will be expected to work in person varies between offices and is based on factors like location and staffing levels.

“It is important that the EEOC reopen our doors, reestablish our physical presence in the communities we serve and provide critical services to vulnerable employees and applicants who most need our help,” Chen said.

Throughout the COVID-19 pandemic, EEOC has struggled to reach some underserved communities that have limited access to digital services.

“The biggest gap in serving the public during the pandemic has been not being able to reach or be accessible to some of the most vulnerable workers, many of which are in rural communities, communities of color, immigrant communities and other places where internet access may be limited,” Chen said.

Some lawmakers have previously expressed similar concerns that EEOC cannot efficiently review and resolve discrimination charges with large-scale remote work.

But Shonfield said that much of EEOC’s public-facing work was done by phone even before the COVID-19 pandemic.

There are still some unresolved issues that the agency and AFGE are working through. The agency will continue union negotiations over the impact of reentry plans on employees.

“These issues are primarily related to the EEOC’s ability to serve the public in person, the number of days employees need to report to the office per week and the length of time before bargaining unit employees need to begin reentry,” Chen said.

The current reentry plan expires at the end of 2022. The agency will use its 2022 reentry as a test run to inform changes to its in-person work policies for next year.

“We will be assessing the efficacy of a hybrid workplace and any technological and structural changes needed to ensure we’re meeting the needs of the public we serve,” Chen said.

A perennial effort to increase pay and benefits for Transportation Security Administration employees took a major step forward this week after the House passed the Rights for the TSA Workforce Act of 2022 on Thursday.

The bill would bring 60,000 TSA employees, including transportation security officers, under the same personnel system as other federal employees under Title 5 of U.S. Code. That includes full collective bargaining rights, access to an independent third party for dispute resolutions and the General Schedule pay system.

Homeland Security Committee Chairman Bennie Thompson (D-Miss.), one of the leading sponsors of the bill, called it “the right thing to do” in a statement released after the bill passed the House. The bill would eliminate the special personnel authorities that have governed workplace conditions for TSA employees since the agency’s inception two decades ago.

“It’s long past time that we place this critical workforce under Title 5 to provide better pay and full collective bargaining rights,” Thompson said. “Doing so will reduce attrition, boost morale and improve and professionalize the TSA workforce.”

The House passed the bill 220-201, almost entirely along party lines, with four Republicans joining Democrats in voting for the measure.

Homeland Security Committee Ranking Member John Katko (R-N.Y.) declined to support the bill. He said he supports increasing pay and benefits for frontline TSO’s, but not for the rest of the TSA workforce.

“If the bill was limited to just them, I would support it,” Katko said on the House floor. “Why do we have to make it for everyone else?”

Katko said he thinks the bill will be “dead on arrival” in the Senate. Republicans also objected to giving TSA employees full collective bargaining.

But Katko said he will support increased appropriations for TSA to raise the salaries of the frontline screening workforce. The Biden administration has proposed a fiscal year 2023 budget for TSA that would finance the agency’s pay equity plan, including a 30% average increase in base pay for TSO’s.

Meanwhile, the American Federation of Government Employees applauded the House passing the bill, and called on the Senate to quickly pick up the legislation.

“TSA officers have been treated as second-class citizens for far too long,” AFGE President Everett Kelley said in a statement. “Despite the unfair pay and treatment, they continue show up for their country each and every day. They have worked for no pay during government shutdowns and put their health at risk throughout the pandemic to ensure the traveling public is safe.”

In the Senate, similar legislation was introduced last year by Sen. Brian Schatz (D-Hawaii) and Sen. Edward Markey (D-Mass.). It was referred to the Committee on Commerce, Science and Transportation, which has yet to take further action on the bill.

‘Many positive effects’

The Biden administration has backed the legislation, and in a Jan. 19 letter to Thompson, TSA Administrator David Pekoske laid out the agency’s analysis of the bill. 

“Our analysis indicates we will see many positive effects from this important legislation; the ability to achieve pay equity for our Transportation Security Officers (TSOs) chief among them,” Pekoske wrote.

Specifically, the entire TSO workforce would see an average 30% pay increase if the bill was fully enacted, according to the document. The average annual salary for transportation security screeners nationwide was $44,920 in May 2020, according to the latest available data from the Bureau of Labor Statistics, although wages vary across geographic regions.

According to Pekoske’s letter, 75% of TSA employees are paid less than the minimum pay that a federal employee with equivalent experience would receive under the General Schedule wage system.

“Limited pay progression, due to budget constraints in recent years, has resulted in
inequitable compensation for our workforce compared to our federal counterparts,” Pekoske wrote. “It also has made recruiting increasingly difficult and resulted in relatively high attrition rates, particularly for TSOs.”

Meanwhile, TSA’s law enforcement workforce would see an average 21% pay increase if the legislation is fully enacted and funded, according to the agency’s analysis.

Ensuring equitable pay for its employees is a “critical step in positioning TSA for long-term success,” Pekoske wrote.

“Over time, these steps may reduce the high levels of attrition in the TSO workforce as well,” he wrote.

GAO reviews and air marshal assistance

The House-passed bill would also direct the Government Accountability Office to review implementation of the new personnel processes within 60 days of TSA employees being converted to Title 5.

Additionally, it would direct GAO to review TSA’s efforts to recruit veterans, members of the armed forces, and their dependents, including recommendations on how to improve those processes.

It would also encourage the TSA administrator to work with organizations that represent federal air marshals to address mental health, suicide rates, and morale and recruitment issues. TSA oversees the Federal Air Marshal Service.

“Data from the Air Marshal Association show that air marshals are at high risk for extreme fatigue due to the long hours they spend on planes and their irregular sleep schedules,” Rep. Jennifer Wexton (D-Va.) said on the House floor. “Many marshals also report mental health issues and a reliance on medications and alcohol to fall asleep.”

The bill would also direct a one-time $3,000 bonus payment for hazard duty to TSA employees who had substantial contact with the public during the pandemic. It would additionally direct the TSA to work with Centers for Disease Control and Prevention and the National Institute of Allergy and Infectious Diseases to ensure employees have proper protection from COVID-19 going forward.

Top priority

The legislation would codify into law efforts already underway by the Biden administration to raise pay and benefits for TSA employees. Biden also recently re-nominated Pekoske to serve another five-year term as TSA administrator. Pekoske has called supporting the workforce his “top priority.”

Last June, Homeland Security Secretary Alejandro Mayorkas directed TSA to expand collective bargaining rights for TSO’s, negotiate an agreement to bring appeals before the Merits Systems Protection Board, and develop a plan to pay screeners in line with the General Schedule.

In September, TSA and the MSPB reached an agreement that allows TSOs to appeal some firings, demotions and long-term suspensions before the board.

Meanwhile, AFGE has called on TSA to expand collective bargaining for TSOs immediately. But TSA told the union it needs additional funding to hire staff that can support an expanded labor framework.

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Yes, federal employees are returning to their offices. No, conditions won’t return to normal, whatever that is. At the Centers for Medicare and Medicaid Services, management and union representatives have been trying out different workplace configurations. The president of the American Federation of Government Employees Local 1923, Anita Autrey spoke with the Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Ms. Autrey, good to have you on.

Anita Autrey: Thank you. Good morning, Tom.

Tom Temin: So what is going on with CMS? First of all, local 1923 is a really big one, isn’t it?

Anita Autrey: Yes, it is. And CMS is one of the agencies that we represent, and I also work for.

Tom Temin: Give us the timelines here. If you go back to when everyone was forced home because of telework, how have things progressed, and where do we stand now?

Anita Autrey: So we are, remember, it was March 16, 2020, employees were told, hey, get what you can from your desk, your laptops, any equipment, paperwork, whatever you think you need, because we are going into 100% telework status. And we’ve been that way for the past two years or more. We started talking about returning to the workplace. And, you know, during the COVID-19 pandemic, you start making plans. And then I think we had the Delta variant, then that delayed plans, because originally federal agencies, I believe, the White House directed that we started returning to work initially in October of 2021. But obviously, that was delayed. Now we are attentively and when we say return to the workplace, that’s going to be much different. Our return date is May 23, 2022. However, now your official duty station may be your home.

Tom Temin: Interesting. So even the management doesn’t anticipate everyone just en masse coming right back into the office.

Anita Autrey: Not at all. In fact, what they did, the agency looked at all of the employees’ positions throughout the Centers for Medicare and Medicaid Services, and decided, hey, is this position qualified for telework? Does it qualify for working remotely inside the geographic area that’s close to your office? Because we have offices across the country. Or does your position qualify for you to work remotely outside of the geographic area? So what will be the most significant change? Initially, there were just 20% of the workforce, teleworking and working from home full time now, which could be from the numbers I’ve looked at 90% to 95% of the workforce may be working remotely or from their homes. So for example, your agency office let’s say you worked in the Baltimore location and say you live in Rehoboth Beach. So if you decided to work from your home there, you would lose your locality pay, because Baltimore locality pay is much higher than Rehoboth Beach because, for example, like a Grade 13 step one would lose 12 to $14,000 a year.

Tom Temin: Oh, real money.

Anita Autrey: Real money, because until that person might say, hey, no, I don’t want to work remotely. I want to telework. And I want to report to the office at least two times in the pay period so that I can retain my locality pay a Baltimore.

Tom Temin: And has the agency amenable to that so far?

Anita Autrey: Yeah, because all of this teleworking, remote work. It’s all voluntary, was the Telework Enhancement Act of 2010. It’s been recently updated by OPM (Office of Personnel Management) to reflect now the workplace more.

Tom Temin: We’re speaking with Anita Autrey. She’s president of AFGE Local 1923, which represents CMS employees. And what about the offices themselves, if only 5% or 10% of the people will be coming in regularly? Or maybe everyone will come in once in a while, but everyone won’t be there at once at any given time. What are they talking about with configuration, and physically what they’re gonna do with all that space?

Anita Autrey: It’s very interesting. And I think change is exciting. So we have one component at our headquarters, and they’re doing what they call the big cleanup. And this is a pilot. So those employees are coming in and removing all of their personal effects throwing away kind of whatever it is that needs to be tossed. And the agency is doing this pilot in order to see how it’s going to recycle, throw away, what’s needed for employees to do that. Because ultimately, the workplace is going to be redesigned. So it’s going to be well you call it you have hotelling, employees can just come in and what you can do you have now go online. And let’s say you want to come in, I want to meet you at the office. So we would see, OK, what workspace is available? We look and there was a system that’s been designed and we login, oh, well, we’ll take this little hub over there. It has what we need there doesn’t have a printer, that’s it have the Telus phone system, we can socially distance.Or do we want an open area? Or can we just go in and sit together? Because the cafeteria is being remodeled. So it’s going to just be well, do we need to collaborate with a group? And you know, so it’s gonna be a completely different workplace.

Tom Temin: By the way, how many employees are involved? How large is 1923?

Anita Autrey: Now 1923 is the largest local in the federation. So we represent about 30,000 employees just with all the components that we represent. But currently, we probably just have maybe right around 5 or 6000 dues paying employees. Now at the Centers for Medicare and Medicaid Services, we’re a smaller agency. So overall, I think total including management and everyone, it’s about 5,000 employees, and we probably have 1,200 or so dues paying members.

Tom Temin: And these negotiations for the office configuration and for telework policy, allowing people, 90% of people to mostly telework or remote work, how would you characterize the negotiations? Has management generally been trying to work with you? And is it been positive?

Anita Autrey: It was a tumultuous 2021. I will say that, and in spite of getting a new administration, you’ll see that it didn’t happen overnight, as we thought it might, you know, it’s kind of like, hey, we’ve got a new president, and he’s pro labor. And, you know, it’s gonna be Kumbaya, no. So what I did, and the agency, we needed to negotiate the return to work. And it ended up turning into a massive kind of agreement. I’ve got it here in front of me. And the agency agreed to reopen our contract, in order to let say renegotiate some of the things that we lost during the last administration.

Tom Temin: Such as official time and office space?

Anita Autrey: Correct, official time. And then there were just other subtle things like, even though partnership ended some years ago, we always, you know, within and it came back under this president, but we had always worked cooperatively at CMS, but in this last contract, they would direct it, you know, to, they even eliminated our cooperation committee. So we’re putting that back, it was just a real interesting time. And we survived it. So we’re looking at expanding workplace flexibilities for employees, and looking at the hours of work. For example, during the pandemic, employees were allowed to work from 5 a.m. to 11 p.m. You know, the children were home or parents, it takes time. And then another part of this, you know, with the COVID-19 testing, and the vaccine mandate, and the up and down. And so just recently, we’ve gotten some new guidance from the department because the Centers for Medicare and Medicaid Services, it’s one of the operating divisions under the Department of Health and Human Services. So we got the new testing requirements for the unvaccinated. The management sent me, you know, a proposal and I had a meeting with them on Monday. And I say, wait a minute, the vaccinated federal employees when they go to other federal buildings, they’re considered visitors, and they’ll need to be tested. And that was something that management failled to realize, oh, wait a minute, we’ve got to develop a protocol with that. So employees will be given smart cards that are required to be tested, and it will have up to a $750 limit. So they can be tested, I think three days before they you have to have a negative test before you report to the office. So we’ll just be developing that program where to get tests, what tests are acceptable, you know, it’s just so much and then OK, oh, tomorrow, new law may come out. Well, you could say I’m really involved. I dream about this stuff sometimes.

Tom Temin: I can imagine. But it sounds like the big issues are largely under control, though, that people don’t have to go back to the office, that the office configuration and availability of workspaces is being worked out with this application. So it sounds like you’re almost there.

Anita Autrey: We are, you know, each day the agency will develop a new system to accommodate you know, the changes and then they’ll do a demonstration with me. And I’ll have a team of folks and we’ll look at it. Some of the regional offices, I know in New York and San Francisco, they are moving to other spaces. And in our Dallas regional office, I think someone bought the building. So we’re having, because not everyone is in a federal building some are in privately owned buildings. And there were changes made during the pandemic. And so we’re dealing with those, you know, at each location. Some of the security and screening measures and, you know, so it’s just a lot happening everywhere, and then tracking the COVID levels in the areas in medium high, you know, and then determining what we do.

Tom Temin: Well, sounds like you’ve got it largely under control. And I think probably your members are saying I’m glad Anita is in charge here.

Anita Autrey: Oh, they love me. I’m not, you know, I don’t want to brag. But I keep them very informed. I get their input. And that’s been real helpful especially when I have parents when we’re doing the negotiations because they try to take in their children back. And so the parents can tell me, oh, how much the test really cost? And that’s how we got the 150 because one of the parents said no, sometimes he couldn’t wait for the test that wherever, so they just go out and purchase their own. So I do get a lot of input from, you know, people that are unlike me, and you know, that’s really important.

Tom Temin: And Anita Autrey is president of AFGE Local 1923, which represents CMS employees. Thanks so much for joining me.

Anita Autrey: Oh, you’re welcome. My pleasure, Tom. Have a wonderful day.

To listen to the Federal Newscast on your phone or mobile device, subscribe in PodcastOne or Apple Podcasts. The best listening experience on desktop can be found using Chrome, Firefox or Safari.

• Members of Congress are asking the Justice Department to pursue a criminal investigation against former Interior Secretary David Bernhardt. Two leaders of the House Natural Resources Committee sent the referral yesterday following what they say was an extensive investigation. The letter intimates there’s evidence Bernhardt overruled career officials’ decisions in order to approve a real estate development in southern Arizona, and that political donations played a role in that decision. Bernhardt told the Associated Press the allegations are “a pathetic attempt by career politicians to fabricate news.” (Federal News Network)

• The new location of U.S. Space Command has been under contention. Now a report says the move was legal and within reason. Some lawmakers accused the Trump administration of foul play when the military abruptly changed the future location of U.S. Space Command from Colorado Springs to Alabama. The Defense Department Inspector General report didn’t make any judgements on political influence; however, it did say that the process for choosing Huntsville, Alabama was legal and reasonable. After reviewing the report, members of the Colorado delegation still say they think there is reason to question the military’s decision for the move. (Federal News Network)

• The Trump Hotel’s lease is changing hands. The Trump Organization has finalized a deal with the Miami-based investment firm CGI Merchant Group, which plans to convert the building into a Waldorf-Astoria luxury hotel. The General Services Administration recently approved CGI as a qualified transferee for the lease to the Old Post Office building in downtown D.C. The lease became the subject of lawsuits and congressional investigations during the Trump administration. Congress and courts debated whether former President Donald Trump’s financial ties to a federal lease violated the Emoluments Clause of the Constitution. (Federal News Network)

• Expanded workers’ compensation may be coming soon to 15,000 federal firefighters. The House has passed the Federal Firefighters Fairness Act. The bill deems heart disease, lung disease and certain cancers as caused by work duties, qualifying for workers’ compensation. To get compensation, the employee must have worked as a federal firefighter for at least five years and must receive a diagnosis within 10 years of employment. Paramedics, emergency medical technicians and rescue workers are also covered. The bill passed the House 288 to 131.

• A key cyber workforce bill cleared Congress this week. Cyber pros will soon have the chance to pursue more opportunities throughout government after the House passed the Federal Rotational Cyber Workforce Program Act. The Senate has already passed the legislation, and it now heads to President Biden’s desk to be signed. The bill will create a civilian personnel rotation program for cybersecurity professionals, allowing them to more easily move between agencies. Lawmakers said it will strengthen the federal cyber workforce by giving employees opportunities to broaden their professional experience and foster collaborative networks across government.

• The FBI goes with a cyber expert to oversee the bureau’s intelligence analysis. Tonya Ugoretz will lead the FBI’s Directorate of Intelligence. She is a long-time intelligence analyst. Her current position is deputy assistant director in the FBI’s Cyber Division, where she oversees national-level cyber policy, analysis of cybercriminal and national security threats, and partner engagement. Ugoretz also served as the first director of the Cyber Threat Intelligence Integration Center within the Office of the Director of National Intelligence.

• The former assistant director of cybersecurity at the Cybersecurity and Infrastructure Security Agency sold his company and has been named the CEO of the one that bought it. Bryan Ware, who was at CISA for about two years, sold Next5 to LookingGlass Cyber Solutions. Terms of the deal were not disclosed. Next5 is a business intelligence and strategic advisory firm. Ware now will become the CEO of Looking Glass, which is a 1000-person, $1.25 billion company. LookingGlass recently won a $14 million other transaction agreement deal from the Defense Innovation Unit to take its tailored cyber threat intelligence data platform into production.

• Two large government contractors go to court over accusations of stealing intellectual property. Appian Corporation has won a $2 billion award from a circuit court in Fairfax, Virginia after a jury decided that Pegasystems violated the Virginia Computer Crimes Act. Appian, which won about $10 million in federal prime contracts in 2021, claimed Pegasystems hired an employee of a government contractor who passed trade secrets about Appian’s product. Pegasystems, which won more than $9 million in federal prime contracts last year, said they disagree with the verdict and will look at options to overturn the decision.

• The Postal Service is facing yet another challenge to plans for its next-generation vehicle fleet, this time from Congress. Democrats on the House Oversight and Reform Committee approve a bill that would require USPS to conduct a new environmental impact statement. That document accounts for the costs and benefits of electric and gas-powered vehicles in its future fleet. USPS said the legislation threatens to hold up 50,000 new vehicles it’s already ordered. Committee Chairwoman Carolyn Maloney said USPS underestimates the benefits of electric vehicles in its current environmental analysis and lowballs the future price of gasoline. “The Postal Service should be leading the charge to reduce carbon emissions and green its fleet.” (Federal News Network)

• Workers at the Equal Employment Opportunity Commission will return to the office at least one day a week starting May 16. After a month, in-person work will go up to two days per week for EEOC employees. In response, the American Federation of Government Employees has filed an unfair labor practice complaint, saying that EEOC did not finish union negotiations before announcing the re-entry. The agency is using 2022 re-entry plans as a test run to inform changes to its in-person work policies for next year.

• The Marine Corps is making more of an effort to keep Marines and their families in the same geographic station as long as opportunities for career growth exist. The plan is to keep units together longer so they will be more cohesive and mature in their skills. The new policy also has the added benefit of allowing Marines and families to build roots in areas they like.

To listen to the Federal Newscast on your phone or mobile device, subscribe in PodcastOne or Apple Podcasts. The best listening experience on desktop can be found using Chrome, Firefox or Safari.

• The House of Representatives is trying to recruit more diverse and high-quality candidates, and get them to stay there. In an effort to open doors to more underserved communities, the House is raising its minimum annual staff salary to $45,000. The deadline to implement the pay raise is September 1. The House is also set to vote this week on a resolution for Congressional workers’ right to organize and join a union. House Speaker Nancy Pelosi (D-Cali.) said the actions will help strengthen workplace rights for House employees.

• A bill to support the Department of Veterans Affairs’ workforce is coming into focus. The VA Workforce Improvement, Support, and Expansion Act would increase pay caps for some VA employees, including the directors of medical centers, physicians and dentists. It would also extend VA’s hiring, recruitment and retention authorities. The bill requires the VA to develop a national recruitment and hiring plan for rural areas, including best practices for recruiting health care professionals to rural VA facilities. Senate VA Committee Chairman Jon Tester (D-Mont.) and committee member John Boozman (R-Ark.) introduced the bill.

• President Biden will renominate David Pekoske to lead the Transportation Security Administration. Pekoske is originally a Trump administration appointee, having served as TSA administrator since August 2017. He is a Coast Guard veteran and former executive in the government services industry. Pekoske is in charge of leading the Biden administration’s push to bring pay and benefits for transportation security officers in line with the rest of the federal workforce.

• The Federal Emergency Management Agency saw some of the most positive results for employee engagement within the Department of Homeland Security. On the third round of the federal pulse survey, 71.8% of FEMA employees agreed or strongly agreed that time flies when they’re working. That’s compared with DHS overall, which gave the lowest scores governmentwide. When asked the same question, 20% of DHS respondents either disagreed or strongly disagreed that time goes by quickly at work. (Federal News Network)

• The Commerce Department lays out six key performance metrics to address workforce challenges and opportunities. In its new strategic plan, Commerce said it wants to ensure employees can collaborate, build knowledge, strengthen skills and use evolving technologies and methods to excel in new mission areas and forms of work. To measure progress, Commerce will focus on shortening the time it takes to hire new employees, create a candidate quality index and develop internal and external training courses to help employees obtain a wider array of knowledge and skills to improve the agency’s mission.

• Officials at U.S. spy agencies are thinking hard about how they use data. The Office of the Director of National Intelligence is drafting a new data strategy for the first time since 2017. Chief data officers across the 18 intelligence agencies are particularly focused on using automation to help deal with what IC Chief Data Officer Nancy Morgan calls a data volume challenge. “We’re collecting and producing more information than ever before, the IC is launching more collection capabilities than ever before at astounding volumes, certainly since I began my career 30-plus years ago in the government,” Morgan said. “It’s just astounding how much information we’re gathering.” (Federal News Network)

• The military will now exclude the weight of gun safes from the total weight allowance of household goods when moving. The weight allowance falls between 5,000 and 18,000 pounds. The Pentagon said the exemption is a way for the Defense Department to prioritize safety and health. Studies show that guns that are locked up help prevent suicides and protect children from accessing firearms.

• The Army is defending its next generation goggles after a scathing report. The Integrated Vision Augmentation System is supposed to give soldiers tons of data straight to the goggles they wear on their face. However, a recent Defense Department Inspector General report said the program is not going as planned and could be wasting nearly $22 billion. Now Army Secretary Christine Wormuth said she thinks the IG report is overblown and that the service will continue to develop the goggles as one of its 35 modernization priorities.

• Two agencies vow to continue working together on researching green technology and environmental justice solutions. The Energy Department and National Science Foundation announced a memorandum of understanding last week that officials said represents a unified approach to researching solutions to reach the White House goal of a 100% clean energy economy by 2050. Research topics may include renewable energy technologies such as bioenergy, building and water treatment technologies, hydrogen and fuel cells, agriculture, critical minerals and materials, and manufacturing.

• Another industry association presses Congress to fund IT modernization. The U.S. Chamber of Commerce is joining the call for Congress to do more to support IT modernization across the government. After nine technology associations wrote to House and Senate leaders on April 29, the chamber adds its voice to the cause of getting appropriators to fund the Technology Modernization Fund and other efforts. Additionally, the U.S. Chamber said it has been five years since OMB released a governmentwide IT modernization strategy and a new approach is needed to stress performance improvements and measure progress, prioritize value, transform and simplify user experience with government systems and services, and improve cybersecurity.

• Top Democrats on the House Oversight and Reform Committee seek more information from the investment firm that’s about to buy the federal lease to the Trump Hotel. Committee Chairwoman Carolyn Maloney (D-N.Y.) and Government Operation Subcommittee Chairman Gerry Connolly (D-Va.) are asking CGI Merchant Group to disclose the identities of investors behind the pending acquisition. Lawmakers also want a list of Trump family members involved in the negotiations of the deal. The Trump Organization is planning to sell its lease to the Trump Hotel building for $375 million.

• Site locations for federal projects in the DC region can have big impacts on equity and inclusion. That’s why the National Capital Planning Commission’s equity action plan makes capital improvements and comprehensive plans priorities. The plan also talks about NCPC’s Beyond Granite pilot project to make public memorials more representative of America’s diversity, and it calls for greater public outreach when choosing locations for federal buildings. NCPC is an independent agency that collaborates on both federal and local projects. (Federal News Network)

The Federal Emergency Management Agency and the American Federation of Government Employees agreed to new policies aimed at ensuring FEMA employees are properly categorized to earn overtime after a major legal settlement, according to the union and its attorney.

Steven Reaves, president of AFGE Local 4060, says the new policy was agreed to as part of a $16.5 million settlement FEMA agreed to pay over unpaid overtime claims. AFGE lodged the Fair Labor Standards Act overtime grievance in 2018.

At the time, Reaves said he was getting numerous complaints from bargaining unit members about unpaid overtime.

“Once we looked at it as a whole, we noticed that it was a systematic problem, that there was an agency-wide problem, the application of overtime and how much overtime that we perceived that people were missing out on,” Reaves said in an interview.

Certain FEMA employees had been misclassified as FLSA exempt, making them ineligible to earn overtime, according to Eric Pines of Pines Federal, AFGE Local 4060’s counsel.

“These cases build up over years and years of misclassification,” Pines said. “[The Office of Personnel Management] or the agency classify the positions and either the initial classification is wrong or the duties change over the years without a reclassification occurring.”

The new policy will ensure FEMA management has a more thorough process for determining who is eligible for overtime. “As a result of the settlement, this is being corrected and, going forward, FEMA employees now know they will be paid appropriately based on an accurate FLSA designation,” Pines said.

In a statement, a FEMA spokesperson said the agency is fixing its policies to ensure employees are no longer misclassified.

“FEMA examined its personnel records and found we had underpaid some of our employees for the overtime they were entitled (this was especially true during our recent historic disaster seasons like 2017),” the spokesperson wrote. “We worked diligently and collaboratively with the union to pay our valued employees what they were entitled. We completed a comprehensive review to fix errors in their personnel records that were the root cause of the problem and we are clarifying our policies to ensure this error never happens again.”

But both Pines and Reaves credited the agency for being cooperative in working out an agreement over the unpaid overtime claims.

“The agency was more than forthcoming, saying, ‘Hey, let’s fix this together,’” Reaves said. “So we had a great partner in them to resolve this issue and then part of that was the monetary settlement.”

FEMA settlement payout details

The $16.5 million settlement covers AFGE bargaining unit employees who worked for FEMA from March 2015 through August 2021, according to Reaves. It includes both current and former employees. The bargaining unit includes approximately 3,800 members.

The union and its attorneys are now working with the Class Action Implementation Group (CAIG) to determine who is eligible to receive payments and distribute the money.

AFGE is directing current and former employees who think they may be entitled to a settlement payment to register at the CAIG web portal for more information, according to a post on Pines’ website.

“Thousands of FEMA employees are covered by the settlement,” Pines said. “Determining eligibility and entitlement is a monumental task being worked on by the union, its attorneys and implementation company. Collectively, we need to ensure the settlement funds are distributed in a fair and equitable manner and that those so entitled are located and paid.”

Turnover and burnout at FEMA

FEMA’s workforce has faced numerous challenges in recent years, with high rates of turnover and burnout stemming from an increase rate of natural disasters, according to the Government Accountability Office.

The agency has played a critical role in the federal COVID-19 response, deploying to testing and vaccination sites around the country. It has also been called into help with the surge of migrant children at the southern border.

When Reaves began fielding complaints about unpaid overtime in 2018, the agency was recovering from a record breaking 2017 disaster season while preparing for what would eventually become another eventful year for hurricanes and other natural disasters.

Reaves said FEMA is the latter stages of planning for the upcoming hurricane season, while also continuing with its COVID-19 and border duties.

“We usually go from one disaster to the next, and this led to a higher turnover and burnout on our on our end,” Reaves said. “So this recoupment of overtime that a lot of our bargaining unit members lost, maybe it’ll take a little of the sting out of the insanely increased workload that we’ve been suffering the last couple of years.”