Another labor union is bringing a U.S. federal agency through the legal process over allegations that officials restricted remote work options for employees.

A council of the American Federation of Government Employees said it will seek arbitration over the Department of Housing and Urban Development’s denial of a national remote work grievance.

According to the union’s grievance filed on June 8, management excluded broad groups of employees from remote work without “appropriate consideration of the employees’ duties, assignments, and functions” after it settled an agreement in April. The department, which employs roughly 9,600 staff members, denied the complaint, saying employees are allowed “unprecedented workplace flexibilities” and the maximum approved telework days per the Office of Personnel Management.

“When the pandemic started, our entire workforce was working at home,” said Salvatore Viola, the union Council 22 president. “They were working remotely and successfully carried on the mission of the agency.”

The bargaining unit covers about 5,000 employees.

According to union officials, while the department was rolling out a system to field applications for remote work and telework, it preemptively sent notices that certain employees were only approved for routine telework, meaning reporting to an agency office at least twice in a pay period.

An email sent by the Office of the Chief Human Capital Officer announcing applications for remote work and telework said “nothing precludes employees from submitting a request for a different Flexiplace option (i.e., telework, remote work) than the one identified in the notification letter.”

Employees were then able to apply for a Flexiplace arrangement, according to the email. If employees were determined ineligible for the option they requested, they would be provided with a reason for the denial, said union officials.

“It seems to be a managerial preference,” said Ricardo Miranda, the council’s chief steward.

“As agreed to in HUD’s supplement with AFGE, eligibility for Flexiplace arrangements – including remote work, mobile work, and telework – is being determined ‘based on objective, equitable guidelines, function-based criteria, and shall not be arbitrary and capricious,’” said a HUD spokesperson in an email.

The union collected sample applications as evidence of denied requests that lacked reasoning behind the decisions, despite each application having a designated blank section to provide elaboration.

Some of the applications merely cite previous determinations from the department that a position was excluded from fully remote work. Others simply included a variation of the “Your position is not eligible for remote telework” message.

“The boilerplate exclusion of eligibility for remote work and eligibility for only routine telework without providing any reason why employees cannot work remotely failed to consider individual employee requests and the specific position, duties, and assignments of employees,” the grievance said.

Viola said exclusion from remote work fails to consider how reentry imposes commuting costs amid soaring gas prices and hardships on employees who are caregivers.

In a written response to the grievance, the agency denied the allegation, saying most employees were approved for a Flexiplace arrangement of either remote work or expanded telework based on objective, equitable guidelines, function-based criteria, and not arbitrary and capricious reasons.

Ricardo and Viola say that while they recognize a 100% remote environment for every HUD employee is unreasonable, more employees should be eligible for remote work than the agency determined. They said HUD employees are well-equipped to do so because of successful remote work during the last 26 months.

How was hiring impacted by the pandemic?

During the pandemic, HUD hired more employees than the number who retired, a first in many years.

Initially, HUD deployed mandatory telework for its employees nationwide as part of an evacuation order on March 20, 2020.

Since then, a report issued by the HUD Office of Inspector General found that “most processes were only slightly impacted or not impacted at all by mandatory telework.”

Unsurprisingly, the report found that processes dependent on physical paper records and facility access were most disrupted, though as of fiscal year 2018, 91% of HUD employees were eligible for telework participation and 82% were already teleworking.

Made possible by the Telework Enhancement Act of 2010, flexible work preceded the pandemic, said Miranda.

“With this existing telework experience and capacity in place, HUD employees are maintaining a high level of service continuity during the COVID-19 pandemic,” the audit found. “Although employees encountered some difficulties and processes were impacted as indicated above, HUD was generally able to quickly adapt and continue performing its essential functions.”

Nevertheless, the report’s findings still allow for office reentry. It encouraged prioritizing plans for reopening offices to account for work processes that are canceled or suspended during telework.

OPM has also advised agencies to leverage telework where possible.

“Employees were able to continue to meet the challenges of their jobs head-on from locations other than their regular duty station, apart from their managers, supervisors, and colleagues,” said OPM Director Kiran Ahuja in a 2021 memo. “Agencies demonstrated that they have been able to continue to carry out their missions effectively.”

Though work flexibility appears to be greenlit at the top of government, agency implementation has not been as smooth.

“HUD management refuses to comply with the President’s agenda of working in partnership with the labor movement to bring the federal government into the 21st century,” the union said in a release. “HUD’s top leadership prefers to manage based on employee attendance in the office rather than focusing on productivity and reducing office space.”

“President Biden has claimed we’re in partnership, and that we do things as partners,” Viola said. “But in the meantime, it’s not happening.”

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.

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