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AFGE sues over executive order limiting use of official time

On May 25, President Trump signed three executive orders affecting the federal workforce. One limits how much time workers can spend on probation when under investigation for misconduct, thus encouraging firings. Another called for the OMB to renegotiate all union contracts involving the federal workforce and to post those contracts online. A third order attempts to restrict the use of official time spent on union activities by requiring federal workers to spend at least 75 percent of their time on government work and introducing a cap on each bargaining unit's use of official time overall.

The American Federation of Government Employees harshly criticized all three measures.

"President Trump's executive orders do nothing to help federal workers do their jobs better," said the AFGE's president. "In fact, they do the opposite by depriving workers of their rights to address and resolve workplace issues such as sexual harassment, racial discrimination, retaliation against whistleblowers, improving workplace health and safety, enforcing reasonable accommodations for workers with disabilities, and so much more."

On May 30, however, the AFGE filed suit over only one of the executive orders -- the limitations on the use of official time for union activities.

The use of official time for union activities is protected by the Civil Service Reform Act of 1978. The specific amount of official time employees can use for this purpose is typically negotiated between the agency and the union or unions involved.

The President seeks to insert new terms. In addition to limiting each employee's use of official time for union activities to 25 percent of their overall work time, the executive order also restricts the average amount of time spent annually by any bargaining unit to one hour per employee. Additionally, the order says that employees may only use official time to pursue grievances if they are doing so on their own behalf.

According to the AFGE, the activities the President seeks to inhibit are all covered by Chapter 71 of the U.S. Code, which details the rights of federal employees to form unions and bargain collectively. In its lawsuit, the union alleges that only Congress may alter the terms of the laws included in Chapter 71.

As we noted, the AFGE lawsuit only involves the order limiting the use of official time, and there is no news yet about any challenge to the other two orders. In the meantime, some agencies may begin implementing the order making it easier to fire underperforming workers.

If you believe your agency is working toward disciplining or firing you, you should contact an attorney familiar with federal employment law.

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