This week the SEC is celebrating SEC Telework Week to recognize the success of the telework program negotiated by the union for SEC employees. Under Collective Bargaining Agreement Article 11, employees may telework up to five days per week, affording them greater flexibility to balance their work and personal lives. The agency's celebration of the union's telework program presents an important opportunity to review the history of this benefit. Employees should remember that programs like telework exist at the agency solely due to the hard fought efforts of the union in the face of consistent opposition by management.
Telework Introduced in First CBA in 2002
The history of the establishment of telework at the SEC is one of hard fought union negotiations. Indeed, prior to the arrival of the National Treasury Employees Union at the SEC in 2000, only a very small handful of employees (perhaps a dozen nationwide) were ever permitted to work from home, despite the encouragement of telework by both Congress and the Office of Personnel Management. In fact, NTEU’s first organizing campaign at the SEC was in large part directly a reaction to SEC management’s refusal to provide telework, alternative work schedules and other important federal employee benefits (such as the Student Loan Repayment Program) at the agency.
In 2002, NTEU negotiated the first telework program at the SEC in Article 11 of its first Collective Bargaining Agreement with the agency. At that time, SEC management opposed the program, but the union ultimately prevailed. Under the new program, for the first time, SEC employees enjoyed the contractual right to telework on a recurring basis for one or two days per week. Furthermore, employees were also permitted to telework on an ad hoc basis as the need arose based upon their schedules. By 2003, more than 10% of the staff had entered into a telework agreement with the SEC. By 2005, approximately a quarter of the staff had done so. NTEU’s new telework program was an unqualified success, improving the work life balance of hundreds of SEC employees across the country.
Expanded Telework Pilot Program in Second CBA in 2007
In 2005, the SEC commenced a “Virtual Workforce” pilot program at the agency, under which ten employees from the Division of Corporation Finance were permitted to telework five days per week. As a result of the success of this pilot, in 2006 the union sought a further expansion of telework rights during its negotiations with the SEC over a new Collective Bargaining Agreement. SEC management opposed the union's telework proposals, but NTEU nevertheless was able to win an “Expanded Telework Trial Program” in the new CBA executed by the parties in 2007. Under this program, approximately 100 SEC employees were permitted to telework for 3, 4 or 5 days per week. The parties also agreed to metrics to gauge the success of the trial program.
The Expanded Telework Trial Program proved to be a huge success. The metrics agreed upon by the parties demonstrated that teleworking employees were just as productive as those who worked in the office. And the program had an extremely positive impact upon the morale of participating employees.
At the same time, telework in the federal government was given a huge boost with Congress’ passage of the Telework Enhancement Act in 2010. The new law, which NTEU lobbied Congress to pass, recognized the positive impact of telework in terms of continuity of operations, saving energy costs, reducing traffic congestion, and improving the work life balance of federal employees. It required federal agencies to develop and enhance teleworking opportunities.
The Struggle to Make Expanded Telework Permanent in the 3rd CBA in 2011
Nevertheless, despite the demonstrated success of the Expanded Telework Trial Program, as well as the passage of the Telework Enhancement Act, SEC management continued to oppose increasing telework opportunities at the agency. In fact, when the parties sat down to negotiate a new Collective Bargaining Agreement in 2011, the management negotiating team actually sought to reduce the telework rights of SEC employees by attempting to insert new provisions into Article 11, including one that would permit management to terminate individual telework agreements at any time for any reason (as the union reported here). Furthermore, management opposed making the Expanded Telework Trial Program available to all employees and sought instead to terminate the expanded telework schedules of the trial program participants.
In the face of this recalcitrant management opposition to telework, the union refused to back down. NTEU ultimately fought the issue (as well as others) for two and a half years, through the CBA negotiations, to a federal mediator at the Federal Mediation and Conciliation Service, and finally in 2013 to a federal Factfinder at the Federal Service Impasses Panel (FSIP). At each and every stage of this process, the SEC management negotiating team opposed any further expansion of telework, and instead sought substantial cutbacks to the program. The union presented substantial evidence in support of its positions on telework.
The FSIP Factfinder Decision and Union Victory on Telework in 2013
At the end of the process, the FSIP Factfinder last summer issued this report completely vindicating the union's position and accepting the union’s proposal that recurring telework should be expanded from the then current maximum of two days per week to five days per week. The Factfinder noted that the union presented solid evidence to support its position, whereas the SEC simply stated a position that was utterly unsupported by the evidence:
In its Position Statement (at pp. 56-64), NTEU described in detail (and with documentation) the implementation of the Expanded Telework program, SEC’s assessment of the program, and various materials suggesting that expansive telework at the SEC had been successful (including SEC materials extolling the expansion of telework). Although SEC’s new proposals reflect a wholesale retreat from SEC’s apparent earlier embrace of greater telework opportunities, this Factfinder finds it significant that no objective evidence has been presented by SEC to demonstrate the Expanded Telework program was not successful. For that matter, SEC has not even provided anecdotal evidence to suggest the program was not successful.
Factfinder’s Report, p. 39.
The Factfinder determined that the union had the better argument – that anyone should be permitted to apply for telework and decisions to grant or deny applications should be made on a case by case basis based on the nature of their work, rather than simply broadly prohibiting the benefit because management does not like it:
Overall, the "take away" for this Factfinder is skepticism regarding the overall SEC approach. Plainly, extensive recurrent telework would be inappropriate for large numbers of Agency employees, simply based on the type of work they perform. However, SEC’s approach is to curtail sharply the opportunity for any employee to apply for the extremely broad telework schedules that succeeded under the pilot program. In this Factfinder’s view, this kind of across-the-board shift is inappropriate. The better strategy is to adopt policies that allow employees broadly to apply for extensive telework opportunities, if they so choose, while also educating supervisors and managers that each telework request needs to be analyzed critically in light of the Agency’s needs and the employee’s ability to perform work independently. Although this individualized assessment approach may be more difficult (because it places supervisors in a position where they sometimes have to say “no” to their employees), it best achieves the result mandated by Congress, i.e., allowing expanded telework opportunities in circumstances that are appropriate.
Factfinder’s Report, p. 40.
In addition to broadly adopting the union’s telework regime, the Factfinder also rejected numerous efforts by the SEC to insert burdensome new standards to curtail telework. As but one example, the Factfinder rejected an SEC proposal to require all teleworkers with children to regularly provide “documentation” that a caregiver is providing childcare during the employee’s working hours. NTEU objected to this burdensome provision as a wholesale invasion of employees’ private lives, and the Factfinder agreed. The Factfinder also included a provision making it clear that 5-4-9 and 4-10 employees also may telework.
The Factfinder also rejected the SEC’s proposal that would mandate that all employees with an ad hoc telework agreement are required to work when the office is closed due to a storm:
In the view of the Factfinder, SEC’s proposal that employees with ad hoc telework agreements be compelled to work during Agency shutdowns, even when the employee was scheduled to be working at the Agency, is simply unreasonable. On those days, the employee’s duty station is the Agency site. If the Agency chooses to shut down the site and send employees home, it is unfair to expect certain groups of workers to be compelled to work from another site. I do not recommend the SEC language.
Factfinder’s Report, p. 59. Furthermore, when there is an early dismissal, such as on a holiday, the Factfinder required that recurring teleworkers will also be excused.
Agreement with Chair White and Implementation of Expanded Telework
Chair White has been highly supportive of the telework program negotiated by the union in the current Collective Bargaining Agreement. Shortly after her arrival at the SEC, Chair White reached agreement with the union to implement the Factfinder's recommendations, rather than appeal them to the Federal Service Impasses Panel. Consequently, we were able to implement the new expanded telework program at the agency in November of 2013.
The new program has been a great success. Since its implementation in late 2013, hundreds of employees have signed up. According to a recent report provided by the SEC to the union, roughly 38% of the agency's workforce are now regularly participating in a recurring telework schedule of from 1 to 5 days per week:
- 36 Employees Are Teleworking 5 Days per Week
- 151 Employees Are Teleworking 4 Days per Week
- 190 Employees Are Teleworking 3 Days per Week
- 699 Employees Are Teleworking 2 Days per Week
- 373 Employees Are Teleworking 1 Day per Week
- 60 Employees Are Teleworking 1 Day Every Other Week
In addition, 2,748 employees have ad hoc telework agreements in place that permit them to telework on an ad hoc basis based upon their schedule demands.
More Improvements to Telework
What's next? The union is currently working with management to establish a long distance telework pilot program which will permit SEC employees to telework from greater distances away from their official duty station. In addition, the union is pushing to lift the telework caps in individual offices, particularly in cases where there is a critical office space shortage.
"Winning implementation of telework at the SEC is one of the union's proudest accomplishments," NTEU Chapter 293 President Greg Gilman noted this morning. "Telework has greatly improved morale at the agency. This flexible benefit makes the SEC a highly desirable place to work, which helps us to attract and retain the best people to meet our mission. It is a win-win all around."