Updated Information regarding the telework pilot program. If you have any questions or concerns please reach out to our Chapter President Robert Lawrence.
01.12.2023 January 11, 2023
M E M O R A N D U M
SUMMARY: NTEU is providing additional information regarding the IRS’s implementation of the remote work project. We will continue to update you as the IRS responds to our requests that it clarify and appropriately implement the MOU.
NTEU is aware of significant issues regarding the IRS’s implementation of the Remote Work Project Memorandum of Understanding (MOU) that was signed on October 25, 2022. We understand and appreciate the frustration that many of our members and chapter leaders are experiencing as a result. At the end of this memo, please see several FAQs regarding some of the most frequent questions we have seen.
From the outset of bargaining over this remote work project (RWP), the IRS advised us that it planned to significantly limit the employees who could participate, chiefly because remote work has never been used by the IRS as a workplace flexibility. The IRS made this decision because, unlike telework, remote work requires changing the employees’ official duty stations (ODS) to their home; and employees are no longer assigned a workstation at their prior Post of Duty (POD). The ODS change can also implicate the employee’s locality pay, as well as increase the agency’s travel costs when they are directed to report to any IRS POD.
As I previously informed you, the law provides the IRS with sole discretion to determine whether it will offer remote work and which employees are eligible. While many employees understandably believe that remote work has already been tested during the pandemic, in reality it was not. During the pandemic, the IRS took measures to evacuate most of the employees from the workplace and even temporarily waived (i.e., for over two years) the requirement of frequent teleworkers to report to the ODS twice a pay period as an additional safety measure. In some instances, mail procedures, scanning and other changes to the workflow and processes were made to expand telework opportunities where possible. The IRS’s relaxation of the reporting rules for teleworkers during the pandemic was based on a regulation permitting the agency to not enforce that requirement during an emergency. Further, the fact that an employee is approved for frequent telework does not require the IRS to permit employees to participate in remote work.
Based on these legal constraints, the scope of bargaining over the RWP was limited, and the IRS alone determined which business divisions, units and occupations would be permitted to engage in the RWP. The IRS alone also determined that no employee who resides more than 50 miles from their current ODS would be permitted to participate. The IRS also determined that employees who have face-to-face interactions with taxpayers, such as field-going Revenue Officers, would not be eligible, as the agency did not want to include employees in the RWP who routinely travel. Similarly, the IRS decided it would not permit employees who routinely have to come into their POD/office to perform work (open and address mail, copy files or other documents, etc.) to participate in RWP. As I stated, these limitations were not subject to bargaining — they were decided by the IRS as a condition to any project getting off the ground.
We agreed to this pilot, because, in our view, this agreement provides an opportunity to test a new workplace flexibility that, if successful, will assist us in persuading the IRS to expand remote work. As of yesterday, 2,313 employees in the bargaining unit have been approved to participate in RWP and 383 applications are pending. And we have already had discussions with the IRS about expanding it as soon as the six-month mark from its commencement, which is on March 12, 2023.
We are also currently reviewing application denials. Pursuant to the MOU, the IRS should not be rejecting RWP applications from employees in eligible positions unless their individual duties preclude remote work pursuant to Section 3C of the MOU. Section 3C only permits the IRS to deny remote work if an eligible employee’s duties require regular taxpayer interaction in the office or in the field; if they have more than intermittent mail volume; if they have a recurring need to shred documents; or if they routinely work with documents too sensitive to be removed from the worksite.
Without a doubt, the IRS communications about the RWP and the limitations inherent in it have been unclear and somewhat chaotic. This is particularly true with respect to employee eligibility. The primary issues appear to have been caused by the IRS attempting to change the eligibility of positions after the MOU had been agreed to, and after it had been approved on agency head review. The IRS has also caused confusion by listing series as presumptively eligible if any employee in a position within that series could qualify, even though it knew that many or most of the employees in that series would be deemed ineligible because of their duties. Additional problems have been caused by inconsistent treatment of positions by different BODs. Further, at least some BODs appear to have simply ignored the MOU and determined new rules for the employees in their BOD without communicating that to anyone. For example, LB&I added several units and/or positions to the RWP that had not been discussed in the negotiations and were not included in the Attachment to the MOU. Combined, these issues have caused the IRS to provide inaccurate messaging to both employees and NTEU.
In response, NTEU intends to file a national grievance concerning the IRS’s attempted removal of W&I Centralized Evaluative Review (CER) employees from project eligibility despite their being listed in the MOU. We will also be evaluating whether additional national grievances are warranted regarding claimed ineligibility of positions listed in the MOU attachment and blanket denials of positions that should have been evaluated on a case-by-case basis. NTEU intends to fully enforce the MOU the parties negotiated and by providing a copy of the local issues chapters are addressing, it will help us determine what additional actions are appropriate.
In the meantime, we have prepared the following FAQs to assist chapters in responding to employee questions concerning the MOU and to help determine if a local grievance is appropriate. We will provide additional information as we receive clarification from the IRS.
1. Can the IRS determine I am ineligible even though my BOD and position are listed in the MOU? Yes. The Attachment to the MOU listed presumptively eligible positions. However, Section 3C permits the IRS to deny employees on a case-by-case basis if their individual duties are incompatible with remote work. That determination is grievable.
2. Am I ineligible if my manager did not hold a formal (“7114”) meeting even though my position is listed as presumptively eligible in the MOU. The IRS claims to have held formal discussions with employees in eligible positions. If they did not hold those formal meetings with employees, we recommend you file a local grievance and request as a remedy that the impacted employee(s) — assuming they are not ineligible pursuant to Section 3C of the MOU — be permitted to apply and have their application considered.
3. My manager reversed their initial approval of my application for remote work. What should I do? While it is possible that the reversal is correct, we want to closely review these circumstances to determine whether management’s eligibility determinations were consistent with Section 3C.
4. Why is participation arbitrarily limited to employees that live within 50 miles of their POD? The IRS had total discretion to select which, if any, employees could participate in remote work and did not budge when NTEU pushed back on their geographic limitation. According to the IRS, this limitation was designed to prevent the IRS from having to pay city-to-city commuting expenses in the event an employee was periodically called back to their former office.
5. Why is my position not listed in the remote work MOU? As with the geographic limitation, the IRS had total discretion and NTEU could not force the IRS to include more positions than they proposed. The IRS has agreed to consider adding additional positions six months into the project and at its conclusion.
6. Are field-going employees eligible? No. The IRS determined that employees who have face-to-face interactions with taxpayers, such as field-going Revenue Officers, would not be eligible as they did not want to include employees in the RWP who routinely travel.
7. If I am approved, when will I begin remote working? March 12, 2023.