**ARS**

**Official Time Policy Statement**

This policy is intended to provide the Agricultural Research Service
(ARS), and employees working for ARS, with clarity regarding the use of
official time and Agency resources by employees pursuing administrative
equal employment opportunity (EEO) complaints against ARS before the
Equal Employment Opportunity Commission (EEOC). The policy also is
intended to provide clarity regarding the use of official time by
employees of ARS who are designated as representatives of other ARS
employees in employment discrimination matters. Generally, the same
principles set forth in this policy apply to an employee's request for
official time in proceedings before the United States Merit Systems
Protection Board, Federal Labor Relations Authority, or in grievance
arbitrations. However, this policy is limited solely to clarification of
the process for requesting official time regarding administrative
complaints of employment discrimination and use of Agency resources to
pursue such complaints.

The Agency's general policy is to grant, deny or reschedule leave based
upon a balanced consideration of the needs of the employee's work unit
and the circumstances surrounding the employee's request for leave.

This policy becomes effective March 1, 2006, and will also apply to all
pending complaints that have not yet proceeded to hearing.

**Purpose**

The following constitutes the Agency's policy with respect to requests
by complainants, their representatives, and witnesses for official time
during the pre-complaint and formal stages of the process for
administrative complaints of employment discrimination.

**Authority**

The regulations of the United States Equal Employment Opportunity
Commission (EEOC) at 29

C.F.R. § 1614.605(b), address the rights of complainants, their
representatives, and witnesses to

a reasonable amount of official time to prepare a complaint, and to
respond to Agency and

EEOC requests for information.

**Eligibility**

The following individuals are to be granted a reasonable amount of
official time:

● A complainant and his/her representative, who are employees of the
Agency and

when otherwise in a pay status, to present a complaint or an appeal,
participate in

mediation, or when their presence is authorized or required by the
Agency or

EEOC during the investigation, resolution or settlement attempts, or
hearing on a

complaint of employment discrimination brought by the complainant, and

2

● An Agency employee, who is a witness in a complaint, regardless of
whether the

complaint is in the employee's Agency or another USDA Agency. The
employee

must be in a duty status and his/her presence must be authorized or
required by

the EEOC or Agency officials in connection with a complaint.

**Official Time for Employee as Complainant**

For purposes of this policy, "official time" is time granted to an ARS
employee without charge to leave or loss of pay, when the employee would
otherwise be in a duty status.

[]{.mark}

For purposes of this policy, "duty status" means the ARS employee's or
representatives normal hours of work at ARS.

An employee may have a reasonable amount of official time, if otherwise
in duty status, to prepare his or her complaint of employment
discrimination against ARS, to respond to requests for information from
the Agency or from the Administrative Judge of the United States Equal
Employment Opportunity Commission (EEOC), assigned to hear the
employee's complaint of employment discrimination against ARS, to meet
with Agency officials, to prepare for meetings with Agency officials, to
prepare for the hearing of his or her complaint of employment
discrimination against ARS, and to present his or her case before the
EEOC. The Agency is required only to grant an employee reasonable time
consistent with the actual business necessities of the Agency.

**Pre-complaint (Informal Complaint) of Employment Discrimination**

A reasonable amount of official time will be allowed for an employee to
make contact, discuss, and meet to attempt resolution of pre-complaint
issues with EEO counselors, Human Resources Specialists, and/or other
officials. A reasonable amount of time may

be granted for an employee to prepare for an initial pre-complaint
contact, including time to discuss issues with the employee's
representative.

**Preparation and Presentation of Complaint of Employment
Discrimination**

A reasonable amount of official time will be allowed for an employee to
prepare and present an EEO complaint. Official time for such purposes
will typically include time to assemble documents to be submitted in
conjunction with the complaint, time spent meeting or consulting with
the employee's representative to assist in complaint preparation, and
time to draft the complaint. A reasonable amount of official time will
be allowed for an employee to prepare responses to questions or
information requests from government officials responsible for
processing or attempting to resolve EEO complaints and pre-complaints.
Employees are also

3

afforded a reasonable amount of official time to prepare any appeals
that may be filed with the Commission, even though no meetings or
hearings are involved.

**Official Time for Employee as Designated Representative**

According to EEOC regulations, an employee has the right to a
representative of his or her choice during the EEO process. An ARS
employee may designate another ARS employee as his or her representative
in an administrative complaint of employment discrimination. An ARS
employee representative may have a reasonable amount of official time,
if otherwise in duty status, to assist in preparation of a complaint, to
assist in responding to requests for information from the Agency, or
from the EEOC Administrative Judge, to meet with Agency officials, to
prepare for meetings with Agency officials, to prepare for the hearing,
and to present the case before the EEOC.

**Designation of Representative**

Any ARS employee may serve as another employee's representative during
the course of an EEO complaint, provided that a written designation has
been submitted and that the representational functions do not constitute
a conflict or apparent conflict of interest with the employee
representative's official or collateral duties (29 C.F.R. 1614.605©).
Both the complainant and the employee he or she seeks to designate as a
representative must notify their first-line and second-line supervisors,
and ARS' Civil Rights Director, in writing, of the

proposed designation of representation. No request for official time of
an employee representative will be granted until the supervisor and the
Civil Rights Director have received the written designation of
representation.

**Restrictions on Representatives**

**No Conflict with Official or Collateral Duties of**

**Representative**

> As stated above, a representative may be disqualified from
> representing an ARS employee if the representational functions
> constitute a conflict or apparent conflict of interest with the
> representative's official or collateral duties (29 C.F.R. 1614.605©).

**Majority of Duty Hours Working for Agency**

> Agency employees are expected to spend the majority of their duty
> hours working for the Agency. It is not unreasonable for the Agency to
> restrict the total amount of representational time granted to an
> employee to a certain percentage of his or her time. The process for
> such restriction, if necessary, is outlined below.
>
> 4
>
> **Official Time Limited to Representation of ARS**

**Employees**

> If an Agency employee serves as an EEO representative for an
> individual who is not employed by ARS or represents an applicant for
> employment who is not an ARS employee, the representative is not
> entitled to official time. The granting of official time for purposes
> of this policy applies only to representation of Agency employees.

**No Change in Schedules, Wages or Travel Expenses**

> The Agency is not obligated to change work schedules, incur overtime
> wages, or pay travel expenses to facilitate an employee's choice of a
> specific representative or to allow the complainant and representative
> to confer.

**Official Time for Employee as Witness in Administrative**

**Proceeding Before EEOC**

> An ARS employee who is a witness, either in person before the EEOC, by
> deposition in an administrative employment discrimination proceeding,
> or by sworn affidavit or declaration in an administrative employment
> discrimination proceeding, shall be in duty status and afforded
> official time when his or her testimony is authorized or required by
> Agency officials or by the EEOC. Employees who are witnesses may have
> a reasonable
>
> amount of official time for the time spent preparing to testify.
> Further, any employee testifying at an administrative employment
> discrimination hearing is entitled to a reasonable amount of official
> time for travel to and from the hearing.

**Official Time to Prepare for Title VII Litigation in U.S.**

**District Court**

> While the EEOC regulations require the granting of reasonable official
> time for preparation of an administrative EEO complaint, the
> Commission defers to the policies of the Agency with respect to
> granting official time to prepare for Title VII litigation in a United
> States District Court. The policy of ARS is that **no official time
> will be granted for preparation for Title VII litigation in District
> Court**. In the event that an employee has filed an EEO action in
> Federal court and requested time to prepare and present his or her
> case in court, a supervisor may only approve annual leave or leave
> without pay. The Office of Personnel Management (OPM) and the Human
> Resources Division (HRD) provides guidance on granting official time
> for court leave. An ARS employee called as a witness, who is served
> with a subpoena to attend a trial or other event in Title VII
> litigation against ARS, is entitled to official time for attendance at
> such trial or event.
>
> 5
>
> **Determining Reasonable Amount of Official Time**
>
> The amount of official time that is reasonable for a given activity in
> any given matter must be considered on a case-by-case basis. ARS will
> not reject the amount of official time requested as unnecessary
> without making efforts to ascertain why the employee believes the time
> is required. "Reasonable" is defined as whatever is appropriate, under
> the particular circumstances of the complaint, in order to allow a
> complete presentation of the relevant information associated with the
> complaint and to respond to Agency requests for information, EEOC
> Management Directive 110 (MD-110), Chap. 6, Sec. VIII(C)(1). The
> actual number of hours to which a complainant and his or her
> representative will be entitled will vary, depending upon the nature
> and complexity of the complaint, and considering the mission of the
> Agency and the Agency's need to have its employees available to
> perform their normal duties on a regular basis. The complainant and
> the Agency should arrive at a mutual understanding as to the amount of
> official time to be used [prior]{.underline} to use of such time.

**Meeting and Hearing Time**

> Most of the time spent by complainants and their representatives
> during the processing of a typical complaint is spent in meetings
> requested by Agency officials or EEOC Administrative Judges and in the
> hearing. Whatever time is spent in such meetings and hearings is
> automatically deemed reasonable. EEOC MD-110, Chap. 6, Sec. VIII(C)
> (2). ARS will, to the extent practical, schedule meetings and request
> hearing times during the complainants' working hours.

**Preparation Time**

> Because presentation of a complaint of employment discrimination
> involves preparation for meetings and hearings, as well as attendance
> at such meetings and hearings, complainants and their representatives
> are also afforded a reasonable amount of official time, as defined
> above, to prepare for such meetings and hearings. However, because
> investigations are not conducted by Agency or Commission personnel,
> the regulation entitling employees and their representatives to
> official time "does not envision large amounts of official time for
> preparation purposes" (EEOC MD-110, Chap. 6, Sec. VIII(C)(3)).
> Consequently, "reasonable," with respect to preparation time is
> generally defined in terms of hours, not in terms of days, weeks or
> months.

**Employee's Consultation with Representative**

> Although an employee is entitled to a reasonable amount of time to
> consult with his or her representative, the employee is not
> necessarily entitled to official time to meet personally with the
> representative. ARS may restrict reasonable official time to telephone
> contact with the representative if the circumstances are warranted.
>
> 6
>
> **Aggregate Time Spent on EEO Matters**
>
> The EEOC considers it reasonable for the Agency to expect its
> employees to spend most of their time doing the work for which they
> are employed. Therefore, ARS may restrict the overall hours of
> official time afforded to a representative, for both preparation
> purposes and for attendance at meetings and hearings, to a certain
> percentage of that representative's duty hours in any given month,
> quarter or year. Such overall restrictions will depend on the nature
> of the position occupied by the representative, the relationship of
> that position to the mission of the Agency, and the degree of hardship
> imposed on the mission of the Agency by the representative's absence
> from his or her normal duties. The Agency will notify each of the
> complainants who have designated the representative of any overall
> restrictions on the amount of official time to be utilized by the
> representative.
>
> **Procedure for Requesting Official Time for Complainants and
> Representatives**
>
> In order to receive official time for participation in the EEO
> process, an ARS employee must properly request official time. The
> Agency cannot be deemed to have denied a request that it never
> received. Supervisors must contact the ARS Civil Rights Staff Director
> upon receipt of any request for official time to ensure that the
> employee has an ongoing complaint and to be apprised of the status of
> the complaint.

**Request to Supervisor**

> An ARS employee seeking official time, to pursue his or her own
> administrative complaint of employment discrimination, or to represent
> another ARS employee
>
> in this pursuit, must make a request for official time their
> supervisor, [at least forty-eight (48) hours prior to the need for
> such official time]{.underline}. Such requests should include the
> specific time needed, the date of such official time, the reasons for
> the requested official time, and any further information the ARS
> employee deems necessary for the Agency to make a determination of
> whether such official time is authorized, and whether it is reasonable
> under guidance from EEOC.
>
> When official time has been requested, the attached Request for
> Official Time Form should be completed by the employee who is
> requesting official time.

**Determination by Supervisor to Civil Rights Director**

> Within twenty-four (24) hours from receipt of the written request for
> official time, the supervisor will make a determination as to whether
> such time is approved or disapproved, or modified in any way. The
> determination of whether the request for official time is "reasonable"
> will be made based upon guidance as set forth above, which will
> include the complexity of the complaint of employment discrimination.
> As stated above, the amount of official time for preparation of a
> complaint of employment discrimination is generally defined in terms
> of hours, not in terms of days, weeks or months. The determination is
> made on a case-by-case basis, as mandated by the EEOC. The supervisor
> will work with
>
> the Civil Rights Director to come to an agreement on the amount of
> reasonable official time to be afforded.

**Process if Request for Official Time is Denied**

> If the Agency denies a request for official time, either in whole or
> in part, the Agency will include a written statement in the complaint
> file noting the reason for the denial. If the Agency's denial of
> official time is made before the complaint is filed, the Agency will
> provide the complainant or his representative with a written
> explanation for the denial, which it will include in the complaint
> file if the complainant subsequently files a formal complaint of
> employment discrimination.

**Use of Government Property**

> An employee's use of government property (i.e. telephones, computers,
> supplies, etc.) in the processing of a complaint must be authorized by
> the Agency. The employee should be informed that privacy during the
> use of such forms of communication cannot be guaranteed.

**EEO COMPLAINT**

**REQUEST FOR OFFICIAL TIME**

**Name:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Area:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Address:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Telephone: \_\_\_\_\_\_\_\_\_\_\_\_\_\_ Fax:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Email: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Approved working Hours (Example: 8:00am to 4:30pm)**

**Request for \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ hours for:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_ Preparation /Meeting with Counselor**

**\_\_\_\_\_\_\_\_ Preparation/Meeting with EEOC, Attorney, Agency
Official, etc.**

**Statement:**

**Approved: \_\_\_\_\_\_\_\_\_\_ Denied:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Name Name**

**If denied, please state reasons:**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**May 2006**