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Office of Resolution Management (ORM)

FAQs: Official Time

Official Time: Questions from Employees

Question Answer
What is official time? The term “official time” as used in these FAQs and Federal EEO regulations at 29 C.F.R. §1614 is refers to time that the employee would otherwise be performing her duties as a Federal employee, also known as “duty time”.
Does an employee (complainant) get official time to work on his or her EEO complaint in the office? Yes. Employees who file EEO complaints are entitled to a reasonable amount of official time to present their complaint and to respond to requests for information from the agency or the Equal Employment Opportunity Commission (EEOC), if he or she is in duty status. Employees who serve as representatives of complainants, if they are current employees of the agency, are also entitled to official time.
Do I have to request approval for use of official time? Yes. Prior to taking any official time to work on your EEO complaint, you must submit a written request to your supervisor.
How is official time given? The employee must request official time in writing from his or her supervisor prior to actually taking any official time to work on his/her EEO complaint.
How much time is considered reasonable? “Reasonable” is defined as whatever is appropriate, under the circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to the agency’s request for information. Your supervisor will decide how much time is reasonable given your particular circumstances.
Is an employee exempt from performing his or her work assignments after he or she files an EEO complaint? No. An employee is expected to perform his or her duties as reflected by his or her position and to meet the expectations set out in his or her performance plan.
If I represent several employees in their EEO complaints, can my supervisor limit my involvement in providing services? EEOC regulations consider it reasonable for supervisors to expect their employees to spend most of their time doing the work for which they are employed. Therefore, supervisors may restrict the overall hours of official time afforded to you as a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of your duty hours in any given month, quarter or year. The restrictions would depend on the nature of the position you occupy, the relationship of that position to the mission of the organization, and the degree of hardship imposed on the mission of the organization by your absence from your normal duties. Again, the amount of official time to be afforded to an employee for representation activities will vary with the circumstances.
Can I use the office copy and fax machines to prepare EEO complaint related materials.? Reasonable use of the office copy and fax machines is accepted as part of your official time to present your complaint and to respond to requests for information from the agency or the EEOC.
Do I have to tell my supervisor what I’m working on? In deciding the approval of official time, your supervisor may need to know the reason for your request to permit your supervisor to make an informed decision on how much time is reasonable. Your EEO counselor can advise you as to the information necessary for appropriate notification and may suggest that you provide notification to your second level supervisor. However, that does not relieve you of your responsibility to notify your immediate supervisor that you have requested official time for working through the complaint process.
Can I work on my complaint every day? The amount of time you spend working on your EEO complaint is up to you. However, the amount of official time that you are entitled to is up to your supervisor. It is important to remember that you are expected to be present and available to perform the duties of your position during your regularly scheduled tour of duty.
Will I be able to attend meetings regarding the processing of my EEO complaint? Yes. If your presence is required by the agency or EEOC, you must attend. The time you spend at any meetings required by the agency or EEOC is considered official time.
Will I have to request approval of official time to attend meetings regarding the processing of my EEO complaint? Yes. You must provide adequate written justification for use of official time to attend meetings regarding your complaint to your supervisor, and receive prior approval.
My supervisor did not approve all of my time requested. Can I file a complaint? Yes. Complainants may raise an allegation related to the denial of official time at any point during the administrative processing of their EEO complaint. Unlike other EEO claims, a claim related to the denial of official time does not require a determination of whether the action was motivated by discrimination. ORM is responsible for investigating claims related to the denial of official time.
How do I file a complaint over the denial of official time? Prior to the completion of the investigation, you must raise any allegations regarding the denial of official time with the ORM field office where your EEO complaint is being processed. You do not have to initiate a new complaint with an EEO counselor. You must provide the ORM field office with a copy of your written request for official time and any documentation or evidence you have pertaining to the denial of your request. If the investigation of your EEO complaint has already been completed and you elected a hearing before EEOC, you must raise your allegation regarding the denial of official time with the EEOC administrative judge assigned to hear your case. If you elected a final agency decision (FAD) from the Office of Employment Discrimination Complaint Adjudication (OEDCA), you must raise your allegation with OEDCA.
What happens after I file a complaint regarding the denial of official time? ORM is responsible for investigating claims related to the denial of official time. The investigation does not require a determination of whether the action was motivated by discrimination. The investigation need only focus on whether the denial of official time was appropriate. In order to determine this, the ORM field office with jurisdiction over the underlying EEO complaint must gather all relevant information regarding the request and denial of the official time. At a minimum, this will include a copy of your written request for official time and the supervisor’s denial and written explanation. All documents related to your official time claim must be included in the EEO complaint file. At the conclusion of the investigation, you will elect either a hearing before EEOC or a FAD from OEDCA, on the merits of your underlying EEO complaint as well as the alleged denial of official time. If EEOC or OEDCA finds that you were improperly denied official time, the agency may be ordered to restore such personal leave as you may have used in lieu of official time.
Can my representative file a claim for denial of official time on my behalf? No. Only the complainant can challenge the agency’s denial of official time. This holds true regardless of whether the denial of official time pertained to the employee or the employee’s representative.
Must my supervisor allow me to meet with my representative in person? No. Although an employee is entitled to a reasonable amount of time to prepare their complaint, the employee’s use of that time is within the employee’s discretion and may be used by the employee to meet with him/her representative as appropriate.
Will the agency pay for my travel to the hearing site? If you are an agency employee, the agency must pay for travel when your presence is required by the agency or EEOC, wherever that hearing is located.
Do employee representatives get official time to work on EEO complaints filed by VA employees? Yes. VA employees who serve as representatives for other employees during the processing of their EEO complaints are entitled to a reasonable amount of official time to assist their clients with the presentation of their complaints and to respond to requests for information from the agency or the Equal Employment Opportunity Commission (EEOC), as long as they are in duty status. Generally, representatives are provided the same rights to official time as the complainant employee. However, only the complainant may raise an allegation that the agency improperly denied a representative’s request for official time.
If there is a conflict of interest between the representative’s official duties and his/her representation activities, can the representative be disqualified? Yes. If there is a conflict between the employee’s official duties and his or her representation activities, the representative may be disqualified. EEOC regulations provide that in cases where the representation of a complainant or agency would conflict with the official or collateral duties of the representative, the EEOC or the agency may, after giving the representative an opportunity to respond, disqualify the representative. To request that a complainant’s representative be disqualified, you must submit a written request to the Office of Resolution Management (ORM) Office of Policy and Compliance (OPC). You must include the specific reason(s) for your request and provide any supporting documentation. After providing the representative an opportunity to respond to the proposed disqualification, the OPC will make a determination whether the representative should be disqualified. At the hearing stage, requests to have either the complainant’s representative or the agency’s representative disqualified must be presented to the administrative judge.

 

Official Time: Questions from Supervisors

Question Answer
My employee works on his or her complaint in the office every day. When I ask about the status of his or her work, he or she says that they didn’t have time. Is this appropriate? No. The employee is entitled to a “reasonable” amount of time to present the complaint and prepare for complaint processing meetings. This is typically not an everyday requirement. You and the facility EEO program manager can meet with the employee to determine what he or she is doing and decide if it is reasonable.
How do I determine how much official time is appropriate? The actual number of hours to which a complainant and his or her representative (if an employee) are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the office and the agency’s need to have employees available to perform their normal duties on a regular basis. You and your employee should arrive at a mutual understanding as to the amount of official time to be used prior to the employee’s use of such time. There may be times when the workload is such that you are not able to provide the employee with the entire amount of time requested or you may not be able to grant the time on the date requested. You should work with the employee to achieve a mutually agreeable alternative (i.e., grant the employee 6 hours instead of the requested 8, or allow the employee the requested time on Wednesday rather than Monday). Supervisors should fully document any denial or change to an employee’s request for official time. If an agreement cannot be reached, the employee may raise an allegation that s/he was denied a reasonable amount of time to prepare his/her EEO complaint.
Can I find out the status of the complaint before I make a decision on granting official time? Yes. Your facility EEO program manager can inform you of the status of the complaint and what is being required of the employee. From this information, you can make a decision on how much official time should be granted.
Should I charge an employee leave if he or she wants to work on their complaint or has to attend a hearing? No. Employees and their representatives are afforded a reasonable amount of official time to prepare their formal complaints and any appeals that may be filed with the EEOC. Similarly, an employee is entitled to official time to attend complaint processing meetings and EEO hearings about his/her complaint.
Can I deny an employee or an employee’s representative official time? Yes. If you deny a request for official time, either in whole or in part, you must document the denial in writing and note the reason for the denial. You must provide a copy of the written denial to your facility EEO program manager.
Can an employee file a complaint if I don’t give him or her the time requested? Yes. Complainants may raise an allegation related to the denial of official time at any point during the administrative processing of their EEO complaint. Unlike other EEO claims, a claim related to the denial of official time does not require a determination of whether the action was motivated by discrimination. However, ORM is responsible for investigating claims related to the denial of official time.
One of my employees represents several employees in their EEO complaints. Can I limit his or her involvement? EEOC regulations consider it reasonable for you to expect your employees to spend most of their time doing the work for which they are employed. Therefore, you may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at complaint processing meetings and hearings, to a certain percentage of that representative’s duty hours in any given month, quarter or year. The restrictions would depend on the nature of the position occupied by the representative, the relationship of that position to the mission of the organization, and the degree of hardship imposed on the mission of the organization by the representative’s absence from his or her normal duties. Again, the amount of official time to be afforded to an employee for representation activities will vary with the circumstances. You should seek advice from your facility EEO program manager or Human Resources staff.
What happens if I improperly deny a request for official time? ORM is responsible for investigating claims related to the denial of official time. The investigation does not require a determination of whether the action was motivated by discrimination. The investigation need only focus on whether the denial of official time was appropriate. In order to accomplish this, the ORM field office with jurisdiction over the underlying EEO complaint must gather all relevant information regarding the request and denial of the official time. At a minimum, this will include a copy of the complainant’s written request for official time and the supervisor’s denial and written explanation. All documents related to the complainant’s official time claim must be included in the EEO complaint file. At the conclusion of the investigation, the employee will elect either a hearing before EEOC or a Final Agency Decision (FAD) from the Office of Employment Discrimination Complaint Adjudication (OEDCA), on the merits of their underlying EEO complaint as well as the alleged denial of official time. If EEOC or OEDCA finds that the complainant was improperly denied official time, the agency may be ordered to restore such personal leave as the complainant may have used in lieu of official time.
Who do I call if I have other questions regarding official time? You should consult with your facility EEO program manager or Human Resources staff.