Union Rights of Excepted Employees During the Government Shutdown

img_8161For excepted employees, everything is the same for the purposes of telework and alternate work schedules during the government shutdown.

Also, union representatives who are excepted may still use official time to represent employees. Furloughed union representatives can only use official time to represent employees in very limited circumstances per guidance from the Office of Personnel Management (OPM):

Can union officials perform representational work on “official time” during a shutdown?

Exempted employees (i.e., employees not affected by a lapse in appropriations—see Question B.3. explaining “exempt” employees) serving as union officials may continue to be granted official time to the same extent and in the same manner as they would under non-shutdown conditions. In general, other employees serving as union officials may not work on official time during a shutdown, because they would be authorized to work official time only while they are in a duty status. Union officials, like other employees, may utilize up to four (4) hours to participate in the orderly suspension of operations.

There may be a narrow set of circumstances where exercise of a union’s statutory rights could itself constitute an excepted activity and thereby fall within the Anti-Deficiency Act’s exceptions. If an agency official who is excepted (i.e., an individual paid by annual appropriations who is excepted from furlough because he or she is performing work that may continue to be performed during a lapse in appropriations—see Question B.1. explaining “excepted” employees) has determined, for example, that an investigation or the initiation of a personnel action is necessary to protect life and property, and must be undertaken prior to the reauthorization of appropriations, such an action could also fall within excepted activity.  If this excepted activity triggers union representational rights under 5 U.S.C. chapter 71 (e.g., a formal discussion, a Weingarten interview, or the representation of an employee in connection with an adverse personnel action), a union’s representational function would be required in order for the Agency to move forward with such an action and would, itself, in that narrow circumstance, constitute excepted activity. In such a case, therefore, official time should be granted to employees to serve in this representational function. With this in mind, agency officials should consult with Human Resources representatives and their General Counsel to evaluate whether contemplated management actions are necessary during the shutdown and whether they will trigger statutory representation rights.

If you have questions or require representation, please contact your chapter president or other chapter representative.

Author: chapterpresident

I have worked in the FDA since 1990 in a variety of positions. I currently serve as chapter president of NTEU Chapter 254, representing FDA employees in Arkansas, Colorado, Iowa, Kansas, Missouri, Nebraska, New Mexico, Oklahoma, Texas, and Utah.