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Controversial EEOC Official Time Rule Caught Up in Biden ‘Midnight Regulations’ Freeze

The agency tasked with investigating employment discrimination said it is considering “next steps” after a planned rule ending union officials’ guaranteed access to official time to work on complaints was withdrawn following President Biden’s inauguration.

A controversial rule ending the Equal Employment Opportunity Commission’s long-running practice of providing official time to union officials when they work on their colleagues’ discrimination cases is now in limbo, as a result of the Biden administration’s halt on the issuance of “midnight regulations” from the waning days of the Trump administration.

Last month, EEOC members voted 3-2 along party lines to end the practice of paying federal workers for time spent working on workplace discrimination cases, but only for union representatives, undoing nearly 50 years of precedent. Instead, proponents of the change on the commission said unions should negotiate for EEOC-based official time with each individual agency.

The vast majority of comments submitted regarding the proposed rule were in opposition to the plan, and Democratic members of the commission described the plan as “partisan overreach” by people “on the wrong side of history.” They argued that the effort was intended to harm unions, but in practice, it would have a chilling effect on victims of discrimination by depriving them of knowledgeable resources on how to navigate the complicated EEOC process.

A month after the EEOC voted to finalize the rule, it has yet to appear in the Federal Register. EEOC spokeswoman Christine Nazer said that although the agency forwarded the rule to the Register, it was not published before Jan. 20. As a result, it was never published due to the Biden administration’s halt on so-called “midnight regulations” approved in the waning days of the Trump administration.

“With respect to rules that have been sent to the [Office of the Federal Register] but not published in the Federal Register, immediately withdraw them from the OFR for review and approval,” wrote White House Chief of Staff Ronald Klain.

Also caught up in the regulatory freeze were proposed rules seeking to amend EEOC’s regulations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

“Pursuant to the memorandum on ‘regulatory freeze pending review’ issued on Jan. 20, 2021, by White House Chief of Staff Ronald A. Klain, these regulatory documents have been withdrawn from the Office of the Federal Register and removed from the EEOC’s website,” Nazer told Government Executive. “The next steps for each rule are under consideration.”

Since Biden’s inauguration, the president has named the commission’s two Democrats, Charlotte Burrows and Jocelyn Samuels, to be the chairwoman and vice chairwoman, respectively. Despite the change in leadership, the future of the regulations remains uncertain, as Biden has not yet nominated new members that would put Democrats in the majority on the commission.

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