As the union and SEC management near the end of our Collective Bargaining Agreement (“CBA”) negotiations, we have received many questions from SEC employees regarding the state of our discussions regarding the future of telework at the SEC.
Since CBA bargaining began last spring, the union team has urged Chair Gensler to seize the unique opportunity this moment in time affords to move the SEC firmly into the future of work in our nation. After two and half years of everyone at the agency working remotely, with a high degree of success, we envision a future with a highly flexible SEC telework program that will allow the agency to continue to attract and retain highly talented professional staff that might otherwise choose to work for whomever pays the most. Such a program would also afford our agency the ability to seed staff around the country and use the flexibility of telework to increase the geographic areas in which our Exams teams and Enforcement staff can expeditiously enforce the securities laws of the United States, while simultaneously greatly reducing our leasing costs. Chair Gensler, unfortunately, does not see this moment as an opportunity for our agency and its workforce. Instead, he is proposing a “hybrid” telework proposal anchored to a “report to the office” paradigm that is rapidly disappearing for white collar professionals, not only in the legal/financial sector, but in every workplace across the country that does not require the physical presence of employees to do their work.
Chair Gensler’s telework proposal is regressive. In several key respects, it is actually more limited than the telework program that has existed at the SEC since 2014. His intent can be summarized as “keeping butts in seats” at the office. His proposed telework regime would require all employees to be in the office four days per pay period. Four- and five-day per week telework, allowed under our current CBA, would be eliminated, except for those grandfathered in because of their pre-pandemic telework schedule. The many people currently on the waiting lists for expanded telework would not be accommodated under Gensler’s proposal.
The Chair’s proposal also would allow first and second level supervisors to establish a “Community Day” each week, during which first and second level supervisors could require all their staff to be in the office together. So, not only does the Chair want all employees in the office at least four days per pay period, but the dates of two of those days would be dictated by their immediate supervisors. With disrespect for the professionalism and work ethic of SEC staff, the Chair also has insisted that a lengthy list of virtually every type of work activity our staff engages in be included in the telework article as a basis for any manager to deny a telework request or require an employee to come into the office on a scheduled telework day. For example, Chair Gensler believes managers should have unfettered discretion to call any employee into the office to, among many other things: review evidence, conduct research or draft memoranda. Finally, Gensler would also effectively eliminate the long distance telework program, which the parties successfully piloted under Chair Jay Clayton during the Trump administration.
Given the unique experience our agency has had during the pandemic, with every single staff person successfully teleworking for two and a half years (a state of affairs that will continue for many more months to come), Chair Gensler’s telework proposals are insulting and entirely out of touch with the realities of our workplace and the lived experience of our employees.
By contrast, the union’s telework proposal is elegantly simple in concept and application. We are advocating for “presence with a purpose.” In practice, what this means is that staff would be required to report in person to the office, or any other location, when there is a need for them to do so. Our proposal envisions two types of telework, Scheduled and Unscheduled. Staff may request Scheduled Telework for as many days a pay period as they want, subject to management approval. That approval cannot be arbitrarily denied, meaning the manager must have a staffing, mission or workload reason to deny the request (as has always been the case under prior versions of our CBA). Similarly, an employee with or without a Scheduled Telework arrangement, may request Unscheduled Telework on any day they do not have a need to go into the office, subject to the approval of their manager based on staffing, mission or workload requirements. A manager could require anyone to come into the office if there is an actual need for them to be there, otherwise, staff could come into their office or telework, as they see fit, based upon their professional responsibilities and schedules. Our proposal is that simple.
Chair Gensler’s proposal is directly at odds with the Biden Administration’s guidance to federal agencies to maximize telework. At an agency such as the SEC, we already know what that looks like from our collective experience during the pandemic. The proposal is also at odds with some of Gensler’s own policy initiatives. For example, while Gensler is championing regulations that would require listed companies to disclose the impact of their activities on the environment, at his own agency he would require staff unnecessarily to commute to work without regard to the environmental consequences. This type of inconsistency is familiar given the Chair’s other personnel decisions, including the expectation that staff should use all their “use-or-lose” leave this year, during the pandemic, while at the same time pursuing an aggressive regulatory policy and forbidding Enforcement staff from settling cases where appropriate. Human capital policies such as these demonstrate that Chair Gensler does not care about the effect of his policies on staffing, mission or workload at the SEC, and that he is not inclined to adopt policies advocated by the President who appointed him.
So where does this leave us? If we are unable to resolve this issue in the next couple of days, we would be at “impasse,” meaning the union and management cannot reach agreement on the CBA. Thereafter, the matter would be submitted for mediation at the Federal Mediation and Conciliation Service (FMCS). If unresolved at FMCS, the matter would be sent to the Federal Services Impasse Panel (FSIP) for final resolution.
The union is quite confident that, in the end, our new telework regime will be much closer to our proposal than management’s. This begs the question, why has Chair Gensler refused to seriously consider how a robust, thoughtful, telework program could advance the SEC’s mission and ability to more broadly prevent securities fraud and abuse across a wider national footprint?