If there was a silver lining to the pandemic at the SEC it was this: over three years, frontline staff demonstrated beyond any doubt that the Agency is able to meet its mission successfully working almost 100% remotely. Nevertheless, Chair Gensler’s irrational hostility to telework continues to be a source of frustration for hardworking frontline staff. Last week, SEC senior management summarily denied the first grievance filed by the Union over a denial of an employee’s request to participate in the new Remote Telework Program. In so doing, senior management fabricated an improper standard for evaluating applications for Remote Telework that will be, for all practical purposes, impossible for any employee to meet. Indeed, management’s invented standard appears designed to allow the SEC to deny all applications to participate in the Remote Telework Program. Because this decision violated both the letter and the spirit of the Collective Bargaining Agreement, the Union has appealed the matter to arbitration.

As you know, the Remote Telework Program described in Article 11 of the 2023 CBA was designed to permit a limited number of employees to telework full-time based on “the importance of recruiting and retaining specialized skillsets and filling positions that are difficult for the [SEC] to fill.” Employees desiring to participate must ask their Division or Office Director to petition senior management to permit the employee to become a Remote Teleworker. Article 11, Section 22 states that the SEC “will accept participants when the [SEC] determines it is in the best interest of the Agency to do so.”

In late March, the Director of one of the SEC’s Offices petitioned to permit an employee with a highly specialized skillset to participate in the Remote Telework Program. The employee in question has a J.D., a Ph.D., two federal appellate clerkships, and, before joining the SEC, worked as an Honors Program Trial Attorney at the DOJ. At the SEC, the employee has received numerous awards, including the Chair’s Award for Excellence, and has served for years as a subject-matter expert in Cyber, Crypto, and Dark Web issues – simultaneously analyzing legal issues and reading and writing code to help the SEC in its oversight and response efforts concerning emerging technologies. 

In her petition to SEC senior management, the Office Director advised that “Only [this employee] has the unique skills, experience, and relationships within the SEC to accomplish what he has.” She further stated that “I have a real concern that if we cannot accommodate [the employee’s] request for a full telework schedule, he may look to leave my Office or the SEC. I cannot overstate the disruption this would cause to my Office.” She went on to say that her office is already hampered by its inability to hire anyone who can do the kind of work this employee is able to do. Importantly, the employee has been teleworking nine days per pay period for years, so the request for Remote Telework only amounts to one additional day of telework each pay period. Furthermore, he works in a regional office in which he is the only member of his Office – his supervisor and his colleagues in that Office are all located in different SEC offices in other cities. Thus, in this employee’s case, requiring him to report in person to his regional office one day per pay period serves no mission-related purpose.

Despite being a “poster child” for participation in the Remote Telework Program, SEC senior management denied the employee’s request in an apparent effort to placate Chair Gensler’s open hostility to telework, concluding that there is no “real evidence of potential mission harm (e.g., whether there is concrete evidence the person is a flight risk, how mission critical the position is, whether the position is hard to recruit for, etc.)” Management’s decision is based in part on concerns that do not appear anywhere in the CBA. For example, although the CBA does not require it, management faulted the employee for failing to provide evidence that he was considering accepting an actual offer of employment elsewhere, and described the Office Director’s concerns about the possibility that the employee might leave (and the mission harm that would result from his departure) as “conclusory and speculative.” 

Essentially, SEC senior management invented a ludicrous standard that requires applicants for the Remote Telework Program first to seek and obtain an offer of employment from another employer before the SEC will even consider granting Remote Telework. The decision offered the specious explanation that, if the rule were otherwise, the SEC would have to grant full-time telework to all SEC employees to preempt any potential attrition. Apparently, in the view of management, the only way to keep participation in the Remote Telework Program to a “limited number of employees” is simply to deny all of the applications. Tellingly, management offered no explanation as to why focusing on the criteria that actually appear in the CBA – a specialized skillset and the need to recruit and retain persons that are difficult for the SEC to hire – would not serve the purpose of limiting the number of participants in the program. In fact, in denying the employee’s application, management did not say a single word about the employee’s highly specialized skillset. Instead, management offered the view that most SEC employees have specialized skillsets and, therefore, focusing on an employee’s specialized skillset (even though that’s what the CBA requires) would result in permitting too many employees to participate in the Remote Telework Program.

At bottom, with respect to this employee, who has a highly specialized skillset and who works in a position that is difficult for the SEC to fill – precisely the criteria set forth in the CBA for participation in the Remote Telework Program – management determined it was not in the SEC’s best interest to permit this employee to telework one additional day per pay period. Management apparently reached this conclusion despite the fact that, for this employee, permitting the additional day of telework would not operate to limit the number of in-person interactions between the employee and his colleagues, since nobody else from his Office works at his regional office.

“Unfortunately, the Union is being forced to litigate issues like this more frequently under Chair Gensler than under any previous SEC Chairman,” NTEU Chapter 293 President Greg Gilman noted today. “If this employee does not qualify for the Remote Telework program, it is difficult to imagine any employee who would qualify,” he added. “Due to Gensler’s irrational antipathy towards telework, the SEC could end up losing some highly qualified people. It is particularly ironic in this case, given that the employee is providing highly specialized contributions in the crypto area, supposedly one of Gensler’s top priorities.”