Official Time Lets Federal Employees Do Union Work on the Taxpayer's Clock

Folks, let me describe a job to you. You show up on a weekday, you clock in, the government pays your salary, and you spend part of that paid day, or in some cases most of it, working for a private organization that is not your employer. Your agency does not fire you for this. It is the law. It even has a polite name, which tells you everything about Washington: "official time."

Most taxpayers have never heard of it. I would bet that a fair number of the people who work in the federal government have only a rough idea of the rules. So let me walk you through how it works, what the statute says, and what both sides have to say about it. I am going to try to be fair, which is harder than it sounds when the subject is a program with a name this soothing.

What official time is

Official time is paid time off from an employee's regular duties, during which the employee is on the clock for the government but is doing work for a labor union that represents federal employees. The key provision is section 7131 of Title 5 of the U.S. Code, part of the Federal Service Labor-Management Relations Statute that Congress enacted in 1978 as Title VII of the Civil Service Reform Act.

The point of the arrangement is that the union is the exclusive representative of the employees in a bargaining unit: it speaks for every employee in the unit, members and non-members alike, and it owes each of them a duty of fair representation. In exchange for that legal burden, the statute lets the union's representatives do some of that work during duty hours, without losing pay, and the agency picks up the cost of their time.

Let me tell you something: you could write a perfectly reasonable defense of that bargain. A union that must represent every employee, fairly, cannot do so on nights and weekends alone. The question is how much, for what purposes, and who decides.

What the statute says

Here is the structure of section 7131, in plain words.

Subsection (a) covers negotiating a collective bargaining agreement. An employee who represents the union in bargaining over a contract is authorized official time for those negotiations, and the statute caps the number of employees who get it: the number on the union side may not exceed the number the agency has at the table. The time is for negotiation and for impasse proceedings, such as mediation.

Subsection (b) is the prohibition, and it is the one worth memorizing. The law says that official time may not be granted for internal union business: soliciting members, collecting dues, running union elections. Those activities have to be done on the employee's own time, outside duty hours.

Subsection (c) covers proceedings before the Federal Labor Relations Authority, the body that decides labor disputes in the federal sector. The Authority itself decides whether an employee taking part on the union's behalf in those proceedings gets official time.

Subsection (d) is the broad one. It says that any employee representing an exclusive representative, or in connection with any other matter covered by the statute, "shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." That is the clause that does the work. The amount is whatever the two sides agree is reasonable, necessary and in the public interest, and in practice they write it into the collective bargaining agreement.

Pause and enjoy the structure. The agency's manager, a public official spending public money, sits across the table from the union and agrees with the union on how much of the public's money should be spent on the union's activity. The only check written into the sentence is the phrase "reasonable, necessary, and in the public interest," and the people who judge that phrase are the two parties who gain or lose by the answer. Now, I am not saying that anyone acts in bad faith. I am saying that if you designed a system to produce a generous result, you would design it this way.

What official time may and may not be used for

The statute and the guidance built on it sort the activity into three baskets.

Allowed. Representing employees in grievances and appeals under the contract. Representing an employee in a meeting with management that may lead to discipline, a right commonly called a Weingarten right in the private sector and given statutory form here. Participating in contract negotiations. Joint labor-management committees and consultations on conditions of employment. Training for representatives, where the contract provides for it.

Not allowed. Lobbying Congress. Under the appropriations laws and federal restrictions on the use of government funds for lobbying, official time may not be used to lobby, and the Hatch Act bars partisan political activity while on duty. Internal union business, as subsection (b) states. Campaigning for a union election, collecting dues, signing up members.

Grey. The grey zone is where the argument lives. Is a representative who spends the day preparing a complaint about a policy that affects the whole workforce doing representation or advocacy? Is a meeting with an agency head about "morale" a matter of conditions of employment, or a union's political lobbying of the executive? Each side sees a different picture, and the answer often depends on how the contract defines the term.

How it is negotiated

Here is the mechanism that most people never see. When a union and an agency negotiate a collective bargaining agreement, one of the articles may set out how much official time the union's representatives get. Some agreements give a bank of hours for the year. Some name a number of full-time representatives who spend their whole work year on union matters and are paid by the agency. Some allow release time on request, with a supervisor's approval.

An employee who is on 100 percent official time is sometimes called a "full-time union representative" or, in the language of critics, a "ghost employee." I will not use the second one, because it is unfair to the people involved, who are following a rule that was negotiated and approved. The right target is the rule.

Let me set out a hypothetical, labeled as one, so that the arithmetic is on the table. Suppose an agency has a bargaining unit of 4,000 employees. Suppose its agreement allows 8,000 hours of official time in a year. A full-time work year is 2,080 hours, which is 52 weeks times 40 hours. So 8,000 divided by 2,080 is about 3.85. That is nearly four full-time equivalent employees paid by the taxpayer to do union work. Whether that is a bargain depends on what they do, and a taxpayer is entitled to a plain accounting of it. I have invented every number in that paragraph to show the method, not to describe an agency.

Where the numbers come from

Here is the good news: the government tracks this. The Office of Personnel Management collects data on official time from agencies and has published reports on its use, covering the number of hours used, the number of employees using them, and the cost in pay and benefits, broken out by agency and by the purpose for which the time was used. The data are in OPM's published official time reports, which you can find by searching the OPM website for "official time."

I am not going to give you a figure for the latest total, and I want to be straight about why. These numbers change from year to year as agencies report, as agreements change and as executive orders alter the rules. Anyone who quotes you a total from memory without a source and a year is selling something. Go to the OPM report for the year you care about, read the methodology, and notice what is counted and what is not. The reports are the kind of document that a skeptic and a defender will read differently, and both should read it.

You should also know that the numbers in these reports come from the agencies themselves, and that how an agency codes an hour, as representation, as negotiation or as something else, affects the totals. A careful citizen asks how an agency decides, and who checks.

The back-and-forth in Washington

Official time has been fought over for years, and the pattern is familiar.

In May 2018, President Trump signed Executive Order 13837 on ensuring transparency, accountability and efficiency in taxpayer-funded union time use. It directed agencies to limit official time, stated that federal employees should spend the clear majority of their duty hours on work for the public, and barred lobbying on paid time except in an employee's official capacity. President Biden revoked it in January 2021 in an order on protecting the federal workforce. Another administration, another pen. Congress has seen bills to restrict official time, and they have not become law.

I will tell you what that pattern teaches, and it is not about either President. It teaches that a policy that rests on an executive order lasts only as long as the occupant of the office. If you want a rule that endures, you have to pass a statute.

The case for official time, stated fairly

Here is the best defense of the practice, in the terms its supporters use.

First, someone has to handle grievances. A federal employee who thinks he was disciplined unfairly is entitled to a process, and the union that represents him cannot do that work if its representatives must do it on a lunch break. Second, labor peace has value. A government that settles disputes at a table avoids slowdowns and lawsuits. Third, the arrangement is statutory. Congress wrote it into law, and the provision says official time must be "reasonable, necessary, and in the public interest," so it already has a limit. Fourth, the practice is not unique to government. Many private employers grant paid release time for union stewards under their own contracts. And fifth, they say, the number of hours is small compared with the size of the workforce, a small price for a functioning system.

Each of those is a serious point and I would not mock any of them.

The case against, in numbered form

Here is the argument on the other side, and I will number it, because you should be able to count it on your fingers.

1. The employer in the private case spends its own money; here the agency spends yours. A private company that grants release time to stewards is deciding how to use its own resources, and if it overpays, the shareholders feel it. A federal manager has no such incentive, and the taxpayer is not in the room.
2. "Reasonable, necessary, and in the public interest" is judged by the parties. The same two parties negotiate and apply the standard, and neither has the public as a client. There is no independent test and no outside auditor built in.
3. Duty hours are the public's. An hour of an air-quality inspector's time spent on a grievance is an hour not spent inspecting. The cost is not only the salary. It is the work not done.
4. The line between representation and advocacy is blurry. The statute bans official time for internal union affairs and the appropriations laws ban lobbying, but enforcement depends on agencies that have little reason to look closely.
5. A fair reform is reporting, not abolition. The reasonable position is to keep the right to representation and to require that each agency publish, in plain numbers, how many hours, for which purposes and at what cost, with an annual audit by the agency's Inspector General.

That last point is where I think conservatives and fair-minded liberals can meet. If a practice is defensible, it should survive daylight. If an agency does not want to publish the numbers, ask yourself why.

Measured against the Founding

You may wonder what the Founders have to say about section 7131. They never heard of a bargaining unit. But they had firm views on the public purse.

Article I, Section 9, Clause 7 of the Constitution says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Look at the second half of that sentence. A regular statement and account of how the public's money is spent shall be published. That is the principle I am after. It does not forbid official time. It says that the people are entitled to see where the money goes.

And Madison in Federalist 51 reminded us that a government of men over men must be made to control itself. A system in which the managers who spend the money negotiate its use with the group that benefits from it is not a system built to control itself. It is a system that depends on the goodwill of both sides, and goodwill, as the Founders understood, is not a constitution.

What a citizen can actually do

You cannot repeal a clause by writing a blog comment, but you can do these things.

• Read your agency's agreement. Many collective bargaining agreements are posted by agencies or by the unions. Look for the article on official time and see what it says.
• Ask for the reports. OPM's official time reports are public, and an agency's Inspector General can be asked to look at how an agency records the use. How to Read an Inspector General Report and Use It to Hold an Agency to Account shows how to read an IG report and how to raise a finding with your representative.
• File a FOIA request if the data are not published. The process is explained in How to File a FOIA Request and Get a Federal Agency to Answer You.
• Write to Congress about section 7131. A modest bill that requires annual public reporting of official time by agency and by purpose would be easy to pass if members heard from constituents.

If you want the history of why federal bargaining looks the way it does, Even Franklin Roosevelt Thought Government Unions Had Limits tells it from 1937 through Janus.

And the coverage

One more word about the coverage, because I cannot help myself. When an administration tries to limit official time, the story is told as an attack on workers. When a union negotiates for more of it, the story is a labor contract. Notice the word choices. "Crackdown." "Rollback." Almost no one asks the simple question a taxpayer would ask: how many hours, for what, at what cost? That is the question to bring to any debate on the subject, and it is a question both sides should be able to answer in a sentence.

The case in brief

1. Official time is paid duty time that federal employees spend on union representation, governed by section 7131 of Title 5, and it is lawful.
2. The statute bars it for internal union business, and it must be "reasonable, necessary, and in the public interest," but the parties who gain from the answer are the ones who judge it.
3. OPM publishes reports on its use, and a citizen should read the report for the year in question rather than trust a quoted total.
4. The defenders have real points about grievances and labor peace; the critics have real points about money, the line between representation and advocacy, and the absence of an outside check.
5. The sensible reform is plain-language public reporting, by agency and purpose, backed by audit, written into statute so that it does not change with each administration.

What you can do: Find the official time article in the collective bargaining agreement for a federal agency near you, then write your member of Congress through My Representatives asking for annual public reporting of official time by purpose.