Re: Notice of Proposed Rulemaking; RIN 3046-AB23; 87 Fed.Reg. 58469-58471 (September 27, 2022)
Dear Ms. Kahn:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking, as published in the Federal Register at 87 Fed.Reg. 58469-58471 (September 27, 2022).
NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees with discrimination complaints. NELA, therefore, has an interest in regulations affecting the Commission’s federal sector complaints process.
NELA supports updating the Commission’s regulations to expressly incorporate e-mail service via the EEOC’s Public Portal as a means by which to effect service of filings in the Commission’s administrative hearings and appeals processes but only on an opt-in basis, rather than opt-out as presently proposed in the rulemaking. NELA respectfully recommends that the Public Portal be first updated to fix technological problems that NELA members have observed, including but not limited to those listed below. Even if users opt-in to use the Public Portal, NELA respectfully requests that the Commission retain the option for parties to validly file documents (including hearing requests and OFO appeals) by other standard service methods such as filing by e-mail, filing by fax, and hard copy filing (whether by U.S. Mail, by commercial shipping service such as FedEx or UPS, or by courier or other hand delivery).
Additionally, to further facilitate these various valid filing options, NELA respectfully requests that the Commission ensure that agencies facilitate an opt-in framework by providing all necessary e-mail addresses, mailing addresses and fax numbers for service upon the agency. Many agencies historically have omitted e-mail addresses despite e-mail becoming a standard correspondence method prior to the creation of the Public Portal. Instead, the Commission should ensure that agencies are required to provide relevant contact information for all valid filing methods allowed under Commission regulations at all stages in the Commission’s administrative complaints process. Doing so would further promote fairness for those with less access to technology or lesser levels of technological literacy, and thus promote access to justice. This is especially true for employees of such agencies as the U.S. Postal Service who do not typically have or utilize e-mail or internet in their daily work activities and for those who may not otherwise have private, reliable access to the internet or needed technology for use of the Public Portal. The technical issues that NELA members have observed in the operations of the Public Portal include unreliable issuance of e-mail notices of new docket entries, e-mail notices being sent to the wrong e-mail address, and e-mail notices being treated as spam, all resulting in situations where NELA members and complainants do not timely receive actual notice of filings to their detriment. Further, NELA members have also experienced instances where they receive notices of new documents being uploaded in the Public Portal, only to log into the Public Portal and find that they have no access to the electronic docket for the relevant case. Any Commission rulemaking should expressly make allowances for these technical limitations.
Currently, some Administrative Judges are known to solely send out issuances via the Public Portal system, while others will also take the precaution of separately e-mailing the parties issuances directly — a method that appears to be far more reliable than exclusive electronic distribution via the Public Portal system. Accordingly, any Commission regulations concerning dates of service and filing deadlines based on dates of receipt of a document should adjust the deadline calculation based on whether the Administrative Judge or party also uses direct e-mail service in addition to the Public Portal or FedSEP submission. If the submission or issuance is also e-mailed directly, then the deadline should be a rebuttable presumption of receipt within 7 (calendar) days of transmission. If the submission or issuance is solely submitted via the Public Portal or FedSEP, then the deadline should not be based on presumed receipt and instead should only be based on the date of actual download of the document from FedSEP the Public Portal, which the Commission indicated was a feasible option in its Notice of Proposed Rulemaking (“Receipt of a Commission decision could be deemed to occur instead when a complainant accesses the decision for the first time.”). NELA is aware that this standard has some apparent analogies to the problems associated with written correspondence being left to sit unopened in the metaphorical mailbox; however, the risk of prejudice due to missing e-mail transmittals far outweighs this concern. Use of the actual access standard would be facilitated if information concerning download dates were made available to parties contemporaneously in some fashion on the Public Portal electronic docket.
As the proposed rulemaking notes, in conformity with 29 C.F.R. § 1614.405(a), the Commission’s Office of Federal Operations (OFO) mails out decisions and other correspondence in appeals. Due to the various technological and logistical issues noted above with the Public Portal, NELA is concerned about shifting over to either a sole or a default electronic service of OFO issuances via the Public Portal. Accordingly, given the current state of the Public Portal system, OFO should continue to use the U.S. mail to send issuances in addition to electronic transmittal of any documents via the Public Portal.
In addition to the above comments, NELA wishes to draw the Commission’s attention to other important revisions or fixes needed to make the Public Portal more usable for complainants and their counsel, which include the following:
- The electronic case docket for each case in the Public Portal should allow parties to be able to view the contact information for the opposing party and its current representatives.
- Ideally, the Public Portal e-mail notice should contain a hyperlink that directly takes the recipient to the relevant docket entry (either with or without first providing login credentials), as is the case for example in the federal courts’ e-filing systems. Absent that, providing a hyperlink to the specific relevant case’s electronic docket page after provision of login credentials (as the Merit Systems Protection Board’s eAppeal system currently permits) would represent an improvement over the present situation where the Public Portal e-mail notice contains no hyperlink at all.
- The Public Portal should be updated to permit complainants’ counsel to file requests for hearing directly, rather than forcing complainants to file requests for hearings themselves on the Portal.
- The Public Portal should be updated to permit complainants’ counsel to file notices of appeal for OFO appeals directly, rather than forcing complainants to file requests for hearings themselves.
- The Public Portal should be updated so that cases on the “My Cases” page are listed not just by the EEOC case number, but also by the parties’ names (and assigned Administrative Judge, for cases at the hearing stage) as well. This addition would be of great utility especially for representatives, who often have numerous current and former cases appearing on the “My Cases” page in the public portal. These cases include closed cases that the Public Portal is not currently configured to separate onto a “closed cases” page (although the Commission may want to consider adding that feature to the Public Portal in the future).
- Electronic dockets for individual cases should chronologically number every docket entry in the electronic docket to allow Administrative Judges and parties the option to reference or cite docket entries by that chronological docket number in later submissions (similar to what the MSPB’s eAppeal system permits, using the same numbering for both FedSEP and the Public Portal).
- The Public Portal should be adjusted to allow complainants and representatives to list more than one e-mail address for themselves, as doing so would permit attorneys to list paralegals, law clerks, or back-up email addresses for service purposes. Similarly, the Public Portal system should allow persons with accounts to list more than one phone number for themselves in their contact information. The Public Portal should expand their list of types of filings to allow more correct categorization of submissions. Certain common types of submissions (for example,
notices of entry or withdrawal of appearance of counsel, reply briefs, and requests for extension of deadlines) do not appear in the Public Portal’s list, resulting in a lot of submissions falling into the catch-all categories of “other motions” or “miscellaneous.”
- The Public Portal “My Cases” page showing the list of matters should be adjusted to allow showing more than just 5 cases at a time, and both the “My Cases” page and the electronic docket pages for cases should allow sorting of the cases listed by each column (for example, sorting by party name or assigned Administrative Judge (if any) on the “My Cases” page, or sorting by filing type on the electronic docket page for a given case).
- The Public Portal should be updated to send e-mail notices asking attorneys to confirm their representational status on OFO appeals when they have been so designated by others in the Public Portal, in a manner similar to what occurs presently at the hearing stage. The Public Portal system has been observed at the appellate stage to at times assume that a complainant’s designation of representative is correct, instead of asking the putative representative to confirm the fact.
Thank you for your consideration. If you have questions or wish to discuss these matters, please contact Laura Flegel at firstname.lastname@example.org or (202) 898-2880 ext. 115.
Laura M. Flegel
Director of Legislative & Public Policy