The Trump administration finalizes rule attacking federal workers’ right to union representation in workplace discrimination cases

In his final weeks in office, the Trump administration continues to attack federal workers’ right to union representation. Last week, the Equal Employment Opportunity Commission (EEOC) voted to finalize a rule that prohibits union representatives from using official time—which is paid work time representatives use for union activities—to represent their coworkers in equal employment opportunity (EEO) matters, overturning almost 50 years of precedent. By prohibiting union representatives from using official time during EEO matters, the final rule effectively limits the right of federal workers to choose their representative in the EEO complaint process.

The rule also creates enormous cost burdens for federal workers who want to file a workplace discrimination complaint. By prohibiting the use of official time in discrimination complaints, federal workers are faced with the choice of hiring a private attorney or asking an inexperienced coworker to be their representative on their own free time. The cost of an attorney will be too costly for many vulnerable federal workers, and between the choices of hiring an attorney, asking an inexperienced coworker to be a representative, or not filing at all, many will forgo exercising their rights.

This is only one of many ways the Trump administration has attacked federal workers’ unions. During his first year, President Trump issued three executive orders eroding the collective bargaining rights of federal workers. These orders shortened the timeframe expected to complete bargaining and directed agencies not to bargain over certain topics, limited the use of official time for collective bargaining activities, and weakened due process protections for federal workers subject to discipline. In October 2019, Trump signed an executive order revoking an executive order issued by former President Obama that gave employees of federal contractors the right of first refusal for employment on a new contract when a federal service contract changes hand.

These actions directly impact millions of federal workers covered by a union contract. As shown in Table 1, 30.5% of federal workers are covered by a union contract, compared to 11.6% of workers overall. An attack on federal unions has a disproportionate impact on workers of color. Hispanic/Latinx (34.4%) and Asian American/Pacific Islander (AAPI, 33.4%) federal workers are more likely to be unionized than white federal workers (30.2%).

Table 1

Share of workers represented by a union contract, by gender and race/ethnicity

All workers Federal government
Overall 11.6% 30.5%
Men 12.0% 32.6%
Women 11.0% 27.8%
White 11.9% 30.2%
Black 12.3% 30.0%
Hispanic/Latinx 10.2% 34.4%
Asian American/Pacific Islander 10.6% 33.4%
Other 10.8% 18.6%

Source: EPI analysis of 2019 BLS Current Population Survey Outgoing Rotation Group microdata

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The EEOC’s final rulemaking on official time also has serious implications for Black workers, who account for 1 in 5 (20.5%) federal employees covered by a union contract, far higher than Black workers’ share of the overall workforce (12.7%), as seen in Table 2. Historically, the public sector has employed higher shares of Black workers than the private sector, thanks in part to the anti-discrimination protections that the federal government adopted in the 1960s and 1970s.

Table 2

Demographics of all workers and unionized federal government employees

All workers Unionized federal government workers
Men 51.8% 59.7%
Women 48.2% 40.3%
White 61.1% 57.0%
Black 12.7% 20.5%
Hispanic/Latinx 17.9% 12.3%
Asian American/Pacific Islander 7.2% 8.3%
Other 1.1% 1.9%

Source: EPI analysis of 2019 BLS Current Population Survey Outgoing Rotation Group microdata

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The EEOC’s final rulemaking on the use of official time is just one of many anti-worker regulations the Trump administration has issued over the last four years. Fortunately, Senate Democrats—with their newfound majority—can overturn this latest attack on federal unions through the Congressional Review Act. Further, President-elect Biden can issue executive actions to overturn Trump’s anti-worker executive orders on day one. But simply reversing the Trump anti-worker agenda will not be enough. The Biden administration must also advance measures that provide the federal workforce, including federal contractors, with strong labor and employment protections.