# F I S C A L Y E A R 2 02 3 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Asec%3A87c25f68deebd737 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ANNUAL REPORT F I S C A L Y E A R 2 02 3 CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 EXAMINATION OF TRENDS AND CAUSAL ANALYSIS. . . . . . . . . . . . . . . . . . . . . 7 PRACTICAL KNOWLEDGE GAINED THROUGH EXPERIENCE AND ACTIONS PLANNED TO IMPROVE COMPLAINT AND CIVIL RIGHTS PROGRAMS . . . . 11 SEC’S NO FEAR ACT TRAINING PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 WHISTLEBLOWER PROTECTION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ATTACHMENT A: EQUAL OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT . . . . . . . . 18 ATTACHMENT B: SEC’S DISCIPLINARY ACTION POLICIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 2023 COLLECTIVE BARGAINING AGREEMENT BETWEEN U.S. SECURITIES AND EXCHANGE COMMISSION AND THE NATIONAL TREASURY EMPLOYEES UNION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Prepared by THE OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY FISCAL YEAR 2023 | iii “ The No FEAR Act requires federal agencies to maintain an effective and mission-focused workplace by affording employees, former employees, and applicants for employment notice of their rights under antidiscrimination laws and whistleblower protection laws and by holding agencies and violators of these laws accountable. INTRODUCTION On May 15, 2002, Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (Pub. L. No 107-174) (No FEAR Act). The No FEAR Act requires federal agencies to maintain an effective and mission-focused workplace by affording employees, former employees, and applicants for employment notice of their rights under antidiscrimination laws and whistleblower protection laws and by holding agencies and violators of these laws accountable. The Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (Pub. L. No. 116-283) (Cummings Act) amended the No FEAR Act to require federal agencies to increase accountability and transparency. The reporting provisions of the No FEAR Act, as amended, set forth under Title 5 C.F.R. section 724.302(a)-(c), list the items to be included in the No FEAR Act Annual Report concerning cases filed under federal antidiscrimination laws and whistleblower protection laws. Agencies must include the following information, inter alia: n n n n The number of federal court cases, pending or resolved, arising under the covered laws and the status and disposition of the cases; Judgment Fund reimbursements and adjustments to the agency’s budget to meet reimbursement requirements; The number and type of disciplinary actions related to discrimination, retaliation, or harassment, and the agency’s policy relating to appropriate disciplinary action; Year-end summary data related to the agency’s equal employment opportunity (EEO) complaint activity for the fiscal year;1 n An analysis of trends, causation, and practical knowledge gained through experience; n Actions planned or taken to improve the agency’s discrimination complaint programs; and n The agency’s No FEAR Act training plan. 1 The No FEAR Act data for the SEC can be accessed from the agency’s homepage (SEC.gov), or directly at sec.gov/eeoinfo/nofeardata.htm. FISCAL YEAR 2023 | 1 Reports must be submitted to the following: n Speaker of the U.S. House of Representatives n President Pro Tempore of the U.S. Senate n U.S. Senate Committee on Homeland Security and Governmental Affairs n U.S. House of Representatives Committee on Oversight and Reform n Each committee of Congress with jurisdiction relating to the agency n Chair, U.S. Equal Employment Opportunity Commission n U.S. Attorney General n Director, U.S. Office of Personnel Management This is the U.S. Securities and Exchange Commission’s (SEC) No FEAR Act Annual Report for Fiscal Year (FY) 2023 in accordance with reporting obligations at 5 C.F.R. section 724.302 (a)-(c). Section 724.302(a)(1): “The number of cases in federal court pending or resolved in each fiscal year and arising under each of the respective provisions of the federal antidiscrimination laws applicable to them as defined in section 724.102 of subpart A of this part in which an employee, former federal employee, or applicant alleged a violation(s) of these laws, separating data by the provision(s) of law involved.” Section 724.302(a)(2)(i): “In the aggregate, for the cases identified pursuant to section 724.302(a) (1), the status or disposition (including settlement).” As noted in the chart below, there were no decisions issued or settlements of SEC cases in federal court under antidiscrimination laws. The majority of cases alleged violations of Title VII of the Civil Rights Act of 1964 followed by the Age Discrimination in Employment Act of 1967. 2 | No FEAR Act Annual Report Cases Pending or Resolved in U.S. Federal Courts2 by Statute and Their Disposition FISCAL YEARS STATUTES 2018 2019 2020 2021 2022 2023 5 3 2 3 2 3 Title VII of the Civil Rights Act of 1964 Pending Cases Decision Issued 1 3 1 1 2 0 Cases Settled 0 0 0 0 0 0 Age Discrimination in Employment Act of 1967 Pending Cases 6 3 2 3 2 2 Decision Issued 1 4 1 1 1 0 Cases Settled 0 0 0 0 0 0 Rehabilitation Act of 1973 Pending Cases 1 0 0 0 0 0 Decision Issued 1 1 0 0 0 0 Cases Settled 0 0 0 0 0 0 Civil Service Reform Act of 1978, Whistleblower Protection Act and Related Laws Pending Cases 0 0 0 0 0 0 Decision Issued 1 0 0 0 0 0 Cases Settled 0 0 0 0 0 0 Equal Pay Act Pending Cases 0 0 0 1 2 2 Decisions Issued 0 1 0 0 0 0 Cases Settled 0 0 0 0 0 0 0 Genetic Information Nondiscrimination Act (GINA) of 2008 Pending Cases 0 0 0 0 0 Decisions Issued 0 0 0 0 0 0 Cases Settled 0 0 0 0 0 0 2 Includes both U.S. District Courts and Courts of Appeals. A case is listed as “Pending” if it was open on the last day of the fiscal year. “Decision Issued” excludes cases that have been appealed to a Court of Appeals. FISCAL YEAR 2023 | 3 Section 724.302(a)(2)(ii): “The amount of money required to be reimbursed to the Judgment Fund by the agency for payments as defined in section 724.102 of subpart A of this part.” No reimbursements to the Judgment Fund were required in FY 2023. Section 724.302(a)(2)(iii): “The amount of reimbursement to the Judgment Fund for attorney’s fees where such fees have been separately designated.” No reimbursements to the Judgment Fund for attorney’s fees were required during FY 2023. Section 724.302(a)(3): “In connection with cases identified in paragraph (a)(1) of this section, the total number of employees in each fiscal year disciplined as defined in section 724.102 of subpart A of this part and the specific nature, e.g., reprimand, etc., of the disciplinary actions taken, separated by the provision(s) of law involved.” No employees were disciplined during FY 2023 in connection with cases identified in paragraph (a)(1) of this section. Section 724.302(a)(4): “The final year-end data about discrimination complaints for each fiscal year that was posted in accordance with Equal Employment Opportunity Regulations at subpart G of title 29 of the Code of Federal Regulations (implementing section 301(c)(1)(B) of the No FEAR Act).” The final year-end EEO complaint case data for FY 2023 are found in Attachment A. Section 724.302(a)(5): “Whether or not in connection with cases in federal court, the number of employees in each fiscal year disciplined as defined in section 724.102 of subpart A of this part in accordance with any agency policy described in paragraph (a)(6) of this section. The specific nature, e.g., reprimand, etc., of the disciplinary actions taken must be identified.” No employees were disciplined during FY 2023, in accordance with the agency policy described in paragraph (a)(6) of this section. (See immediately below.) 4 | No FEAR Act Annual Report Section 724.302(a)(6): “A detailed description of the agency’s policy for taking disciplinary action against federal employees for conduct that is inconsistent with federal antidiscrimination laws and whistleblower protection laws or for conduct that constitutes another prohibited personnel practice revealed in connection with agency investigations of alleged violations of these laws.” The SEC’s EEO Policy Statement sets forth the agency’s commitment to maintaining a work environment that is free of discrimination and retaliation. Further, SEC Administrative Regulation (SECR) 6-20, Disciplinary and Adverse Actions, sets forth policies and procedures for taking disciplinary and adverse actions against bargaining unit and non-bargaining unit employees. The process and procedures covering SEC disciplinary actions are incorporated by reference in the 2023 Collective Bargaining Agreement (CBA) between the SEC and its Union. The CBA explains that disciplinary and adverse actions are taken “for such cause as will promote the efficiency of the service.” See Attachment B—SECR 6-20; Attachment C—CBA, Art. 34, Disciplinary Actions; CBA, Art. 35, Adverse Actions. See also 5 U.S.C. section 7503(a) and 7513(a) (codifying that an agency may take disciplinary or adverse actions against an employee “for such cause as will promote the efficiency of the service”). The SEC Office of Inspector General (OIG) has its own Disciplinary and Adverse Action policy that sets forth the policies and procedures relating to employee misconduct for SEC OIG employees. The SEC OIG’s Disciplinary and Adverse Action Policy is based on 5 U.S.C. Chapter 75 (Adverse Actions), 5 C.F.R. Part 752 (Adverse Actions), 5 C.F.R. Part 315 (relating to probationary periods), and other applicable SEC OIG policies. Pursuant to the SEC OIG’s policy, disciplinary and adverse actions will only be taken for such cause as will promote the efficiency of the federal service. Section 724.302(a)(7): “An analysis of the information provided in paragraphs (a)(1) through (6) of this section in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with 29 C.F.R. part 1614 subpart F of the Code of Federal Regulations. Such analysis must include: (i) An examination of trends; (ii) Causal analysis; (iii) Practical knowledge gained through experience; and (iv) Any actions planned or taken to improve complaint or civil rights programs of the agency with the goal of eliminating discrimination and retaliation in the workplace.” FISCAL YEAR 2023 | 5 “ The SEC’s Office of Equal Employment Opportunity (OEEO) identifies and keeps abreast of significant external EEO complaint processing trends and best practices and compares SEC complaints data with complaints using available government-wide federal sector reports. EXAMINATION OF TRENDS AND CAUSAL ANALYSIS The SEC’s Office of Equal Employment Opportunity (OEEO) identifies and keeps abreast of significant external EEO complaint processing trends and best practices and compares SEC complaints data with complaints using available government-wide federal sector reports. Through sustained engagement with EEO professionals and other colleagues, OEEO learns about and shares best practices and strives to implement leading practices at the SEC. The average number of SEC employees during the period covered in this report (FY 2018 – FY 2023) was approximately 4,540. Between FY 2018 and FY 2023, the average number of formal administrative EEO complaints filed annually was 16. In FY 2023, there were 16 formal complaints filed by 15 individuals. Informal complaint resolutions increased over the past three years. Total Employees, Pre-Complaint/Informal, and Formal Complaints by Fiscal Year Filed FISCAL YEAR 2023 | 7 For the reporting period FY 2018 – FY 2023, there were 95 formal cases. The five discrimination bases alleged most frequently at the SEC were: reprisal (66), sex (54), race (44), age (41), and disability (26). The table and graphic below show the number of complaints filed under each of the most common bases during this reporting period. Most Common Bases Alleged at the SEC FY 2018 – FY 2023 In FY 2023, of the 16 complaints filed, the discrimination bases alleged most frequently at the SEC were reprisal (8), sex (8), age 8), race (8), and disability (4).3 For comparison purposes, according to the Equal Employment Opportunity Commission’s (EEOC) Annual Report on the Federal Work Force for FY 2020, the top five bases in complaint allegations were reprisal, age, disability, race, and sex.4 The employment issues raised most frequently in the 95 formal cases occurring from FY 2018 – FY 2023 were: non-sexual harassment (39), terms and conditions of employment (28), promotion/ non-selection (23), performance evaluation/appraisal (22), and assignment of duties (15). The table and graphic below show the number of complaints filed under each of the most common issues during this reporting period. The EEOC updated the reporting of bases in FY 2023: assignment of duties is now reported under ‘other terms / conditions of employment.’ For comparison purposes, terms / conditions of employment is combined with assignment of duties for FYs 2018 – 2022. 3 Complaints can be filed alleging multiple bases. The sum of the bases may not equal total complaints filed. 4 U.S. Equal Employment Opportunity Commission, Office of Federal Operations, Annual Report on the Federal Work Force Fiscal Year 2020, Infographic 3 – Top Five Bases in Complaint Allegations, pg. 12. This is the most recent data available. 8 | No FEAR Act Annual Report Issues Raised Most Frequently at SEC FY 2018 – FY 2023 The issues most frequently raised in the 16 FY 2023 cases were: other terms/conditions of employment (7), pay (including overtime) (5), non-sexual harassment (4), promotion/non-selection (2), other disciplinary (2), and termination (2).5 Of note, the issue of pay (including overtime) was added to the table above because this issue was raised more frequently in FY 2023 than prior fiscal years. Pay concerns and non-sexual harassment were the most frequently alleged singular issues in FY 2023. Issues collectively referred to as other terms and conditions demonstrate a range of unique issues alleged including assignment of duties, conversion of full time/permanent status, duty hours, reinstatement, and retirement concerns. In FY 2023, the SEC returned from an emergency telework status at the end of the Covid pandemic, and new policies were implemented within the workforce that will be monitored for impact and trends in future reporting cycles. According to the EEOC’s Annual Report on the Federal Work Force for FY 2020, the top five issues in complaint allegations were harassment–non-sexual, disciplinary action, promotion/non-selection, reasonable accommodation, and assignment of duties.6 The SEC experienced similar trends over the past reporting cycles, with harassment, performance, pay, and promotions appearing as issues most frequently alleged in complaints. 5 Note: Complaints can be filed alleging multiple bases. The sum of the bases may not equal total complaints filed. 6 U.S. Equal Employment Opportunity Commission, Office of Federal Operations, Annual Report on the Federal Work Force Fiscal Year 2020, p.13. FISCAL YEAR 2023 | 9 The EEOC regulations governing data posted pursuant to Title III of the No FEAR Act evaluate case disposition data by the following types: dismissals by the agency, withdrawals by complainants, and findings of discrimination. (See sec.gov/eeoinfo/nofeardata.htm.) As noted above, there were no findings of discrimination during this period. In FY 2023, the average number of days to complete an investigation was 204, which was an improvement from 220 in FY 2022. However, it should be noted that EEO cases are unpredictable and complex, such that shorter case processing timelines are only one data point supporting program efficiency. Another is that the SEC completed all investigations and final adjudications within regulatory timeframes in FY 2023. At the close of FY 2023, four complaints filed in previous years were pending hearings before administrative judges at the EEOC. There were four other complaints filed in previous years that were on appeal to the EEOC’s Office of Federal Operations. The SEC’s complainant rate of .30% in FY 2023 was below the most recently reported rate across the federal government (.36%) and for medium-size agencies (.48%) like the SEC.7 The table below shows, for each year in the reporting period, the number and percent of complaints filed and the number and percent of individuals filing at least one complaint (i.e., complainants). The SEC assessed whether the observed increase in the complainant rates was larger than would be expected due to chance. The observed increase in FY 2023 was not statistically significant compared to FY 2022, or over the long term compared to FY 2018. There were no statistically significant short-term or long-term changes over the last six years; however, there was a decline in complaints from FY 2020 to FY 2022 during the SEC’s shift to mandatory telework, which reduced in-person contact. Complaint activity has fluctuated over the last six fiscal years, from a high of 24 complaints in FY 2019 to a low of 12 complaints in both FY 2018 and FY 2022. Complainant Rates for Fiscal Years 2018 – 2023 Fiscal Year Total Workforce Complaints Filed as a % of Total Workforce Number of Complainants as a % of Total Workforce Number of Complaints Filed Number of Complainants* 2018 12 12 4,448 0.27% 0.27% 2019 24 21 4,365 0.53% 0.48% 2020 16 16 4,493 0.36% 0.36% 2021 15 14 4,536 0.33% 0.31% 2022 12 12 4,452 0.27% 0.27% 2023 16 15 4,965 0.32% 0.30% * Complainants may file multiple complaints. 7 To gain some insight into the frequency of complaint filings, the EEOC calculates the percentage of federal employees who file formal complaints - or who become “complainants” - at each agency; this is the complainant rate. Government-wide, the rate of complainants was .36% and for medium-size agencies (1,000 to 14,999 employees), the rate was .48%. See U.S. Equal Employment Opportunity Commission, Federal Sector Reports, Annual Reports on the Federal Work Force, Annual Report on the Federal Work Force Fiscal Year 2020, Download 2020 Annual Report Complaints Tables.zip, available at eeoc.gov/federal-sector/reports. 10 | No FEAR Act Annual Report PRACTICAL KNOWLEDGE GAINED THROUGH EXPERIENCE AND ACTIONS PLANNED TO IMPROVE COMPLAINT AND CIVIL RIGHTS PROGRAMS The SEC’s OEEO is the designated agency organization for processing complaints of employment discrimination at the SEC and leads the agency’s effort to proactively prevent workplace discrimination. OEEO champions workplace awareness and understanding of EEO and aligns activities with Strategic Goal 3 of the SEC’s FY 2022 – FY 2026 Strategic Plan: Support a skilled workforce that is diverse, equitable, and inclusive and is fully equipped to advance agency objectives. The SEC also evaluates its EEO Program on an annual basis to ensure alignment with the essential elements of a model EEO Program, as required by the EEOC’s Management Directive (MD) 715. In preparing the agency’s FY 2023 No FEAR Act Report, OEEO examined complaint data to identify potential concerns, spot trends, and develop action plans. The SEC reviewed and audited the formal EEO complaint case data maintained in its case-tracking software system, ETK-EEO. In addition, No FEAR Act data is posted on the SEC’s external website on a quarterly basis and included in Attachment A of this report. In FY 2023, OEEO completed 30 counselings under Part 1614. All counselings completed in FY 2023 qualified as timely under 29 C.F.R. section 1614.105. Twenty-four counselings were timely completed within 30 days. Six counselings were processed through the SEC’s Alternative Dispute Resolution (ADR) program and were timely completed within 90 days. Of the 30 counselings completed, 10 were either withdrawn or no formal complaint was filed. In each of these counselings, the agency provided the regulatory-required notification to individuals of their various rights and responsibilities in the EEO process. This information was provided during the initial counseling session orally and later in writing. In FY 2023, 16 new formal EEO complaints were filed under Part 1614, compared with 12 in FY 2022. OEEO generally issued all Acceptance letters/Dismissal decisions within a reasonable time average of 62 days in FY 2023 after receipt of the written EEO counselor’s report. OEEO conducted investigations of formal EEO complaints in a timely fashion. OEEO provides complainants with the regulatory-required “180-day letter” if an investigation is expected to exceed 180 days. This letter notifies complainants of the date by which OEEO expects to complete the investigation and informs complainants of their right to request a hearing before an EEOC administrative judge or to file a lawsuit in district court. In FY 2023, four Final Agency Decisions (no discrimination found) were issued. FISCAL YEAR 2023 | 11 The SEC regularly monitors trends in its EEO Program to determine whether its obligations under the workplace antidiscrimination laws have been met. Through this monitoring, OEEO staff members have gained insights that have helped improve the SEC’s overall EEO Program, including the following observations: n n n n n n n 12 A commitment from top-level leadership to EEO—including a commitment to proactive prevention efforts (e.g., committing resources to identifying and eliminating any barriers to equality of opportunity)—shapes the workplace experience, inspires employee confidence, and aids legal compliance. This commitment is best manifested through tangible actions by the Chair, Commissioners, and senior leaders to support EEO and visibly and actively engage with OEEO as a valued partner. At the SEC, the EEO director directly reports to the Chair and routinely meets with senior leaders, resulting in advancement of shared priorities through resources, support for initiatives, and cooperation and consultation regarding relevant organizational priorities. Maintaining OEEO’s independence is indispensable to safeguarding statutory EEO compliance requirements. This independence is vital to fostering trust that the EEO Program is impartial and separate from other offices with potentially conflicting interests. Proactive prevention of discrimination, harassment, retaliation (including whistleblower retaliation), and other prohibited personnel practices remains vital to fostering workplace civil rights and upholding Merit System Principles. Training and continual development of professional staff to lead compliance prevention efforts is vital to sustain an effective program. There are numerous, sometimes overlapping sources of legal protections (e.g., via statutes, regulations, and Executive Orders) and various related enforcement processes (e.g., the Part 1614 process, intra-agency harassment procedures, Union grievances, and Office of Special Counsel/ Merit Systems Protection Board complaints). Accordingly, workforce notices and messaging to notify employees of their rights, reinforced through outreach and training, can aid understanding rights and remedial processes. All organizational leaders should consider civil service protections before and while implementing new or changed policies, practices, procedures, and organizational decisions that could affect the workforce. Outreach to the OEEO director to obtain crucial input and feedback on personnel, budget, technology, and other workforce issues can help ensure equality of opportunity considerations are embedded in decision-making. Resolving issues early and expeditiously helps maintain a professional work environment that fosters open communication, trust, and employee engagement. EEO counseling plays an important role in helping aggrieved individuals understand their rights and obtain early resolution of workplace concerns. Mediation and other forms of ADR can provide faster, less expensive and contentious, and more productive results in resolving workplace disputes, including claims of discrimination, harassment, and retaliation or workstyle or personality conflicts that may arise. Early resolution allows the parties to voluntarily reach binding resolution and restore focus on advancing the SEC’s tripartite mission of protecting investors, maintaining fair, orderly, and efficient markets, and facilitating capital formation. | No FEAR Act Annual Report OEEO adopted an internal strategic plan that aligns with Strategic Goal 3 of the SEC’s FY 2022 – FY 2026 Strategic Plan (Support a skilled workforce that is diverse, equitable, and inclusive and is fully equipped to advance agency objectives) and Strategic Initiative 3.1 (Focus on the workforce to increase capabilities, leverage shared commitment to investors, and promote diversity, equity, inclusion, accessibility, and equality of opportunity). There are three goals under the OEEO Strategic Plan. 1. Lead Compliance with EEO Laws and Proactively Remove Barriers to Equal Employment Opportunity 2. Promote a People-Centered Culture at all Levels and Locations 3. Position Internal Operations and Expertise to Optimize Service-Delivery Within this strategic framework, OEEO measures progress and impact quarterly and annually. Of note in FY 2023, OEEO: n n n n n n Processed all informal and formal complaints and requests for ADR in compliance with 29 C.F.R. Part 1614 and EEOC MD-110; Contributed expertise to a variety of agency efforts focused on individuals with disabilities, including participation in a cross-agency working group focused on advancement opportunities for employees with disabilities; Concluded the qualitative phase of a barrier analysis study related to observed triggers in promotions for individuals within the IT management occupation; Partnered with the SEC’s Office of Human Resources, Office of Minority and Women Inclusion, and Office of the Chief Operating Officer to close out recommendations for management action stemming from prior OEEO barrier analysis studies; Collaborated with the federal sector EEO community to share and learn best practices and innovative approaches to enhance equality of employment opportunity; Continued to incorporate the EEOC’s Six Essential Elements of a Model EEO Program to achieve greater program effectiveness; n Briefed senior leadership on the state of the agency’s EEO Program; n Improved accuracy of EEO complaint data through increased oversight; n Leveraged internal communication channels to distribute EEO-related information and promoted early conflict resolution; n Trained supervisors and managers to provide proactive approaches to resolving workforce issues; n Increased employee awareness of EEO statutes, Executive Orders, and leading practices; and n Continued to collaborate with stakeholders across the agency to analyze workforce demographic data. FISCAL YEAR 2023 | 13 Section 724.302(a)(8): “For each fiscal year, any adjustments needed or made to the budget of the agency to comply with its Judgment Fund reimbursement obligation(s) incurred under section 724.103 of this part.” As noted above, no reimbursements were made by the SEC to the Judgment Fund during FY 2023; therefore, no adjustments were made to the SEC’s budget to comply with this section. 14 | No FEAR Act Annual Report SEC’S NO FEAR ACT TRAINING PLAN The No FEAR Act requires each agency to develop a plan to train all employees (including managers and supervisors) about the rights and remedies available under the antidiscrimination laws and whistleblower protection laws applicable to them. The Office of Personnel Management regulations require agencies to include No FEAR Act training plans in the annual No FEAR Act Report. (See 5 C.F.R. §724.302(a)(9).) TRAINING FOR NEW SEC EMPLOYEES As part of the SEC’s ongoing effort to train all SEC employees on their rights, remedies, and responsibilities under the No FEAR Act, new SEC employees receive information about their rights and responsibilities under the antidiscrimination laws and whistleblower protection laws during new employee orientation, including the SEC’s EEO and harassment prevention policies. All new employees are also required, as instructed during new employee orientation, to take an online No FEAR Act training course within 30 days after joining the SEC. The training is formally assigned and tracked through the SEC’s e-learning system, LEAP. The SEC’s Office of the General Counsel also provides training to new employees on federal employee whistleblower protections and rights. TRAINING FOR ALL SEC EMPLOYEES EVERY TWO YEARS In compliance with the requirement to provide No FEAR Act training every two years, the SEC assigned mandatory No FEAR Act training to all SEC employees in 2022 through an online learning platform, and 98 percent completed the No FEAR Act training. Beginning in FY 2024, No FEAR Act training will be assigned for completion every 18 months. The next assignment will be sent to members of the workforce in July 2024 for completion by September 2024. ADDITIONAL OUTREACH REGARDING RIGHTS AND REMEDIES OEEO partners with other SEC offices to ensure all employees are aware of, and know how to, access EEO policies and related information. The SEC maintains an EEO Policy Statement, which advises employees about the SEC’s commitment to EEO laws and provides information on how to participate in the EEO complaint process. In addition, the SEC’s Policy Statement on Preventing Harassment (PPH) expresses the SEC’s commitment to a harassment-free work environment. The PPH Program was designed to identify and stop behavior that violates the agency’s policy. These policy statements are physically posted in prominent locations throughout the SEC’s headquarters and regional offices and are available on the SEC’s intranet. The OEEO intranet page contains contact information and resources about EEO laws and policies, including complaint processing procedures. This helps ensure that employees have access to assistance, including EEO counseling. The SEC also provides contact information and other relevant information to members of the public, including applicants for employment, on SEC.gov. FISCAL YEAR 2023 | 15 “ The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 provide the right for covered federal employees to make protected disclosures and to be protected from retaliation for making such disclosures. WHISTLEBLOWER PROTECTION LAWS The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 provide the right for covered federal employees to make protected disclosures and to be protected from retaliation for making such disclosures. The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 further reinforces and enhances these protections. A whistleblower makes a protected disclosure by reporting what they reasonably believe to be a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety; or censorship related to research, analysis, or technical information. These protected disclosures may be made to anyone, but are typically made to management, to the SEC Office of Inspector General (OIG), or to the U.S. Office of Special Counsel (OSC), which is an independent federal investigative and prosecutorial agency. The Whistleblower Protection Enhancement Act of 2012 requires that the statement below is incorporated into the SEC’s and the SEC OIG’s nondisclosure policies, forms, or agreements, including those in effect before the Act’s effective date of December 27, 2012: These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this agreement and are controlling. In May 2023, the SEC obtained its recertification under the OSC’s 5 U.S.C. section 2302(c) certification program. This OSC certification program requires agencies to periodically inform employees about their rights and remedies under the whistleblower protection laws. In December 2023, the SEC OIG trained its supervisory employees on how to respond to allegations of whistleblower retaliation, as required by the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The SEC OIG’s public website contains information about whistleblower rights and remedies, and options for filing complaints of whistleblower retaliation via the SEC OIG’s hotline. (See SEC.gov/oig). FISCAL YEAR 2023 | 17 ATTACHMENT A: EQUAL OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT EQUAL EMPLOYMENT OPPORTUNITY DATA POSTED PURSUANT TO THE NO FEAR ACT U.S. SECURITIES AND EXCHANGE COMMISSION For 4th Quarter 2023 for period ending September 30, 2023: Comparative Data Previous Fiscal Year Data 2018 2019 2020 2021 2022 2023 Thru 09-30 Number of Complaints Filed 12 24 16 15 12 16 Number of Complainants 12 21 16 14 12 15 Repeat Filers 0 3 0 1 0 1 Complaint Activity Complaints by Basis Note: Complaints can be filed alleging multiple bases. The sum of the bases may not equal total complaints filed. Comparative Data Previous Fiscal Year Data 2018 2019 2020 2021 2022 2023 Thru 09-30 Race 6 12 7 5 6 8 Color 2 3 3 1 1 1 Religion 1 4 0 3 2 1 Reprisal 9 14 12 11 12 8 Sex 6 14 9 8 9 8 PDA 0 1 0 0 0 0 National Origin 1 1 1 1 0 0 Equal Pay Act 2 4 0 1 0 2 Age 4 10 5 8 6 8 Disability 3 4 5 6 4 4 Genetics 0 0 0 0 0 0 Non-EEO 0 4 2 1 0 1 18 | No FEAR Act Annual Report Complaints by Issue Comparative Data Note: Complaints can be filed alleging multiple bases. Previous Fiscal Year Data The sum of the bases may not equal total complaints filed. Starting in FY 2022, issues marked with: * are reported under Other Terms / Conditions of Employment. ** are reported under Other Disciplinary Actions. 2018 2019 2020 2021 2022 2023 Thru 09-30 Appointment/Hire 1 0 2 1 0 0 Assignment of Duties* 2 4 5 3 1 0 Awards 3 2 2 2 0 0 Conversion to Full Time/Perm Status* 0 0 0 0 1 0 Demotion 0 0 0 1 1 0 Reprimand** 0 1 1 0 2 0 Suspension 0 0 1 0 0 0 Removal 2 2 1 0 2 0 Other Disciplinary Actions** 0 0 0 0 0 2 Other 2** 0 0 0 0 0 0 Duty Hours* 0 0 0 0 0 0 Perf. Evaluation / Appraisal 6 3 2 8 3 0 Examination/Test 0 0 0 0 0 0 Non-Sexual 5 9 9 8 4 4 Sexual 0 2 0 0 0 1 Medical Examination 0 0 0 0 0 0 Pay Including Overtime 1 3 1 1 0 5 Promotion/Non-Selection 5 7 2 3 4 2 Denied 0 0 1 0 1 0 Directed 1 1 0 0 2 0 Reasonable Accommodation Disability 1 3 2 2 0 1 Reinstatement* 0 0 0 0 0 0 Religious Accommodation 0 0 0 0 0 0 Retirement* 1 0 0 0 0 0 Sex – Stereotyping 0 0 0 0 0 0 Telework 0 0 0 0 0 0 Termination 0 1 1 1 1 2 Terms/Conditions of Employment* 1 6 11 7 3 0 Time and Attendance 1 1 0 0 0 1 Training 0 0 0 0 0 0 Other Terms/Conditions of Employment* 0 0 0 0 0 7 User Defined – Other 1* 0 0 0 0 0 0 User Defined – Other 2* 0 0 0 0 0 0 User Defined – Other 3* 0 0 0 0 0 0 User Defined – Other 4* 0 0 0 0 0 0 Disciplinary Action Harassment Reassignment FISCAL YEAR 2023 | 19 Comparative Data Previous Fiscal Year Data 2018 2019 2020 2021 2022 2023 Thru 09-30 Average Number of Days in Investigation 189.76 175.78 218.88 243.09 219.91 204.36 Average Number of Days in Final Action 38.10 57.38 52.00 39.91 58.00 38.00 Processing Time Complaints Pending During Fiscal Year Complaint Pending During Fiscal Year Where Hearing Was Requested Average Number of Days in Investigation 207.50 174.71 226.57 219.80 217.34 222.00 Average Number of Days in Final Action 23.00 50.50 48.00 41.00 40.00 22.50 Complaint Pending During Fiscal Year Where Hearing Was Not Requested Average Number of Days in Investigation 161.83 179.50 183.00 278.80 202.17 206.80 Average Number of Days in Final Action 52.80 78.00 60.00 58.00 60.00 44.75 2023 Thru 09-30 Comparative Data Complaints Dismissed by Agency Previous Fiscal Year Data 2018 2019 2020 2021 2022 Total Complaints Dismissed by Agency 0 5 0 0 0 5 Average Days Pending Prior to Dismissal 0 141 0 0 0 137 3 0 0 2 2 1 Complaints Withdrawn by Complainants Total Complaints Withdrawn by Complainants 20 | No FEAR Act Annual Report Findings of Discrimination Rendered by Basis Comparative Data Previous Fiscal Year Data Note: Complaints can be filed alleging multiple bases. 2018 The sum of the bases may not equal total complaints and findings. # Total Number Findings 0 2019 % # 2020 % 0 # 2021 % 0 # 2023 Thru 09-30 2022 % 0 # % 0 # % 0 Race 0 0 0 0 0 0 0 0 0 0 0 0 Color 0 0 0 0 0 0 0 0 0 0 0 0 Religion 0 0 0 0 0 0 0 0 0 0 0 0 Reprisal 0 0 0 0 0 0 0 0 0 0 0 0 Sex 0 0 0 0 0 0 0 0 0 0 0 0 PDA 0 0 0 0 0 0 0 0 0 0 0 0 National Origin 0 0 0 0 0 0 0 0 0 0 0 0 Equal Pay Act 0 0 0 0 0 0 0 0 0 0 0 0 Age 0 0 0 0 0 0 0 0 0 0 0 0 Disability 0 0 0 0 0 0 0 0 0 0 0 0 Genetics 0 0 0 0 0 0 0 0 0 0 0 0 Non-EEO 0 0 0 0 0 0 0 0 0 0 0 0 Findings After Hearing 0 0 0 0 0 0 Race 0 0 0 0 0 0 0 0 0 0 0 0 Color 0 0 0 0 0 0 0 0 0 0 0 0 Religion 0 0 0 0 0 0 0 0 0 0 0 0 Reprisal 0 0 0 0 0 0 0 0 0 0 0 0 Sex 0 0 0 0 0 0 0 0 0 0 0 0 PDA 0 0 0 0 0 0 0 0 0 0 0 0 National Origin 0 0 0 0 0 0 0 0 0 0 0 0 Equal Pay Act 0 0 0 0 0 0 0 0 0 0 0 0 Age 0 0 0 0 0 0 0 0 0 0 0 0 Disability 0 0 0 0 0 0 0 0 0 0 0 0 Genetics 0 0 0 0 0 0 0 0 0 0 0 0 Non-EEO 0 0 0 0 0 0 0 0 0 0 0 0 Findings Without Hearing 0 0 0 0 0 0 Race 0 0 0 0 0 0 0 0 0 0 0 0 Color 0 0 0 0 0 0 0 0 0 0 0 0 Religion 0 0 0 0 0 0 0 0 0 0 0 0 Reprisal 0 0 0 0 0 0 0 0 0 0 0 0 Sex 0 0 0 0 0 0 0 0 0 0 0 0 PDA 0 0 0 0 0 0 0 0 0 0 0 0 National Origin 0 0 0 0 0 0 0 0 0 0 0 0 Equal Pay Act 0 0 0 0 0 0 0 0 0 0 0 0 Age 0 0 0 0 0 0 0 0 0 0 0 0 Disability 0 0 0 0 0 0 0 0 0 0 0 0 Genetics 0 0 0 0 0 0 0 0 0 0 0 0 Non-EEO 0 0 0 0 0 0 0 0 0 0 0 0 FISCAL YEAR 2023 | 21 Findings of Discrimination Rendered by Issue Starting in FY 2022, issues marked with: * are reported under Other Terms / Conditions of Employment. ** are reported under Other Disciplinary Actions. Comparative Data Previous Fiscal Year Data 2018 # 2019 % # 2020 % # 2021 % # 2023 Thru 09-30 2022 % # % # % Total Number Findings 0 Appointment/Hire 0 0 0 0 0 0 0 0 0 0 0 0 Assignment of Duties* 0 0 0 0 0 0 0 0 0 0 0 0 Awards 0 0 0 0 0 0 0 0 0 0 0 0 Conversion to Full Time/Perm Status* 0 0 0 0 0 0 0 0 0 0 0 0 Demotion 0 0 0 0 0 0 0 0 0 0 0 0 Reprimand** 0 0 0 0 0 0 0 0 0 0 0 0 Suspension 0 0 0 0 0 0 0 0 0 0 0 0 Removal 0 0 0 0 0 0 0 0 0 0 0 0 Other Disciplinary Actions** 0 0 0 0 0 0 0 0 0 0 0 0 Other 2** 0 0 0 0 0 0 0 0 0 0 0 0 Duty Hours* 0 0 0 0 0 0 0 0 0 0 0 0 Perf. Evaluation/Appraisal 0 0 0 0 0 0 0 0 0 0 0 0 Examination/Test 0 0 0 0 0 0 0 0 0 0 0 0 Non-Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Medical Examination 0 0 0 0 0 0 0 0 0 0 0 0 Pay Including Overtime 0 0 0 0 0 0 0 0 0 0 0 0 Promotion/Non-Selection 0 0 0 0 0 0 0 0 0 0 0 0 Denied 0 0 0 0 0 0 0 0 0 0 0 0 Directed 0 0 0 0 0 0 0 0 0 0 0 0 Reasonable Accommodation Disability 0 0 0 0 0 0 0 0 0 0 0 0 Reinstatement* 0 0 0 0 0 0 0 0 0 0 0 0 Religious Accommodation 0 0 0 0 0 0 0 0 0 0 0 0 Retirement* 0 0 0 0 0 0 0 0 0 0 0 0 Sex-Stereotyping 0 0 0 0 0 0 0 0 0 0 0 0 Telework 0 0 0 0 0 0 0 0 0 0 0 0 Termination 0 0 0 0 0 0 0 0 0 0 0 0 Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 Time and Attendance 0 0 0 0 0 0 0 0 0 0 0 0 Training 0 0 0 0 0 0 0 0 0 0 0 0 Other Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 1* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 2* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 3* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 4* 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Disciplinary Action Harassment Reassignment Continued on the next page 22 | No FEAR Act Annual Report Findings of Discrimination Rendered by Issue Starting in FY 2022, issues marked with: * are reported under Other Terms / Conditions of Employment. ** are reported under Other Disciplinary Actions. Comparative Data Previous Fiscal Year Data 2018 # 2019 % # 2020 % # 2021 % # 2023 Thru 09-30 2022 % # % # % Findings After Hearing 0 Appointment/Hire 0 0 0 0 0 0 0 0 0 0 0 0 Assignment of Duties* 0 0 0 0 0 0 0 0 0 0 0 0 Awards 0 0 0 0 0 0 0 0 0 0 0 0 Conversion to Full Time/Perm Status* 0 0 0 0 0 0 0 0 0 0 0 0 Demotion 0 0 0 0 0 0 0 0 0 0 0 0 Reprimand** 0 0 0 0 0 0 0 0 0 0 0 0 Suspension 0 0 0 0 0 0 0 0 0 0 0 0 Removal 0 0 0 0 0 0 0 0 0 0 0 0 Other Disciplinary Actions** 0 0 0 0 0 0 0 0 0 0 0 0 Other 2** 0 0 0 0 0 0 0 0 0 0 0 0 Duty Hours* 0 0 0 0 0 0 0 0 0 0 0 0 Perf. Evaluation/Appraisal 0 0 0 0 0 0 0 0 0 0 0 0 Examination/Test 0 0 0 0 0 0 0 0 0 0 0 0 Non-Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Medical Examination 0 0 0 0 0 0 0 0 0 0 0 0 Pay Including Overtime 0 0 0 0 0 0 0 0 0 0 0 0 Promotion/Non-Selection 0 0 0 0 0 0 0 0 0 0 0 0 Denied 0 0 0 0 0 0 0 0 0 0 0 0 Directed 0 0 0 0 0 0 0 0 0 0 0 0 Reasonable Accommodation Disability 0 0 0 0 0 0 0 0 0 0 0 0 Reinstatement* 0 0 0 0 0 0 0 0 0 0 0 0 Religious Accommodation 0 0 0 0 0 0 0 0 0 0 0 0 Retirement* 0 0 0 0 0 0 0 0 0 0 0 0 Sex-Stereotyping 0 0 0 0 0 0 0 0 0 0 0 0 Telework 0 0 0 0 0 0 0 0 0 0 0 0 Termination 0 0 0 0 0 0 0 0 0 0 0 0 Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 Time and Attendance 0 0 0 0 0 0 0 0 0 0 0 0 Training 0 0 0 0 0 0 0 0 0 0 0 0 Other Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 1* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 2* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 3* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 4* 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Disciplinary Action Harassment Reassignment Continued on the next page FISCAL YEAR 2023 | 23 Findings of Discrimination Rendered by Issue Starting in FY 2022, issues marked with: * are reported under Other Terms / Conditions of Employment. ** are reported under Other Disciplinary Actions. Findings Without Hearing Comparative Data Previous Fiscal Year Data 2018 # 2019 % 0 # 2020 % 0 # 2021 % 0 # 2023 Thru 09-30 2022 % 0 # % 0 # % 0 Appointment/Hire 0 0 0 0 0 0 0 0 0 0 0 0 Assignment of Duties* 0 0 0 0 0 0 0 0 0 0 0 0 Awards 0 0 0 0 0 0 0 0 0 0 0 0 Conversion to Full Time/Perm Status* 0 0 0 0 0 0 0 0 0 0 0 0 Demotion 0 0 0 0 0 0 0 0 0 0 0 0 Reprimand** 0 0 0 0 0 0 0 0 0 0 0 0 Suspension 0 0 0 0 0 0 0 0 0 0 0 0 Removal 0 0 0 0 0 0 0 0 0 0 0 0 Other Disciplinary Actions** 0 0 0 0 0 0 0 0 0 0 0 0 Other 2** 0 0 0 0 0 0 0 0 0 0 0 0 Duty Hours* 0 0 0 0 0 0 0 0 0 0 0 0 Perf. Evaluation/Appraisal 0 0 0 0 0 0 0 0 0 0 0 0 Examination/Test 0 0 0 0 0 0 0 0 0 0 0 0 Non-Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Sexual 0 0 0 0 0 0 0 0 0 0 0 0 Medical Examination 0 0 0 0 0 0 0 0 0 0 0 0 Pay Including Overtime 0 0 0 0 0 0 0 0 0 0 0 0 Promotion/Non-Selection 0 0 0 0 0 0 0 0 0 0 0 0 Denied 0 0 0 0 0 0 0 0 0 0 0 0 Directed 0 0 0 0 0 0 0 0 0 0 0 0 Reasonable Accommodation Disability 0 0 0 0 0 0 0 0 0 0 0 0 Reinstatement* 0 0 0 0 0 0 0 0 0 0 0 0 Religious Accommodation 0 0 0 0 0 0 0 0 0 0 0 0 Retirement* 0 0 0 0 0 0 0 0 0 0 0 0 Sex-Stereotyping 0 0 0 0 0 0 0 0 0 0 0 0 Telework 0 0 0 0 0 0 0 0 0 0 0 0 Termination 0 0 0 0 0 0 0 0 0 0 0 0 Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 Time and Attendance 0 0 0 0 0 0 0 0 0 0 0 0 Training 0 0 0 0 0 0 0 0 0 0 0 0 Other Terms/Conditions of Employment* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 1* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 2* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 3* 0 0 0 0 0 0 0 0 0 0 0 0 User Defined – Other 4* 0 0 0 0 0 0 0 0 0 0 0 0 Disciplinary Action Harassment Reassignment 24 | No FEAR Act Annual Report Pending Complaints Filed in Previous Fiscal Years by Status Comparative Data Previous Fiscal Year Data 2018 2019 2020 2021 2021 2023 Thru 09-30 Total Complaints from Previous Fiscal Years 19 15 17 12 6 4 Total Complainants 17 13 13 12 6 4 0 0 0 0 1 0 Number Complaints Pending Investigation ROI Issued, Pending Complainant’s Action 0 0 0 0 0 0 Hearing 18 15 15 10 3 4 Final Agency Action 1 0 2 2 3 0 Appeal with EEOC Office of Federal Operations 6 1 4 2 3 4 Comparative Data Previous Fiscal Year Data Complaint Investigations 2018 2019 2020 2021 2022 2023 Thru 09-30 0 0 1 1 1 0 Pending Complaints Where Investigations Exceed Required Time Frames1 1 These investigations were conflict cases handled by other agencies. FISCAL YEAR 2023 | 25 ATTACHMENT B: SEC’S DISCIPLINARY ACTION POLICIES SEC ADMINISTRATIVE REGULATION U.S. Securities and Exchange Commission Office of Human Resources Washington, D.C. 20549 SECR 6-20 February 10, 2020 DISCIPLINARY AND ADVERSE ACTIONS This administrative regulation describes the policy and principles of the U.S. Securities and Exchange Commission (SEC) for maintaining discipline and for taking disciplinary and adverse actions. Except as otherwise noted, this policy applies to all SEC employees without regard to bargaining unit status. This policy applies to the SEC’s Office of the Inspector General to the extent it does not interfere with or impede the authorities or independence of the Inspector General pursuant to the Inspector General Act of 1978. This administrative regulation shall be reviewed at least every three years to ensure the contents remain relevant and reflect current federal laws, rules, regulations, and SEC regulations. Summary of Changes. This revision supersedes SECR 6-20, “Disciplinary and Adverse Actions,” dated January 15, 2016. This revision reflects a change in the policy approving officials; updates to the policy, authority, and responsibilities sections; and other administrative updates. //Signature on File// James P. McNamara Chief Human Capital Officer Office of Human Resources 26 | No FEAR Act Annual Report SECR 6-20 February 10, 2020 SEC ADMINISTRATIVE REGULATION DISCIPLINARY AND ADVERSE ACTIONS 1. Purpose and Scope This administrative regulation describes the policy and principles of the U.S. Securities and Exchange Commission (SEC) for maintaining discipline and for taking disciplinary and adverse actions. 2. Policy It is the policy of the SEC that disciplinary and adverse actions will be taken for such cause as will promote the efficiency of the federal service. 3. General Procedures 3.1. Except as otherwise noted, refer to Article 34, “Disciplinary Actions,” and Article 35, “Adverse Actions,” of the Collective Bargaining Agreement (CBA) and the askHR portal for related procedures. 3.2. Except as otherwise noted, refer to Article 36, “Unacceptable Performance,” of the CBA and the askHR portal for information regarding actions based on unacceptable performance. 4. Authority • • • • Chapters 43 and 75 of Title 5, United States Code Parts 432 and 752 of Title 5, Code of Federal Regulations, current edition Public Law 95-452, “Inspector General Act of 1978,” October 12, 1978, as amended Collective Bargaining Agreement between the United States Securities and Exchange Commission and the National Treasury Employees Union, current edition 5. Applicability 5.1. Except as noted in subsection 5.2. below, this administrative regulation applies to all SEC employees without regard to bargaining unit status. 5.2. This policy applies to the SEC’s Office of the Inspector General to the extent it does not interfere with or impede the authorities or independence of the Inspector General pursuant to the Inspector General Act of 1978. 5.3. Until further notice, except as noted in subsection 5.4. below, the authorities cited above and Article 34, “Disciplinary Actions,” Article 35, “Adverse Actions,” and Article 36, “Unacceptable Performance,” of the CBA shall apply to all SEC employees. 5.4. The following provisions of the CBA shall not apply to non-bargaining unit employees: 2 FISCAL YEAR 2023 | 27 SECR 6-20 February 10, 2020 5.4.1. Article 34, the last sentence of Section 5.G.; 5.4.2. Article 34, Section 7; 5.4.3. Article 35, the last sentence of Section 3.7.; 5.4.4. Article 35, Section 5; and 5.4.5. Article 36, Section 5. 6. Definitions Except as otherwise noted, refer to Article 34, “Disciplinary Actions,” Article 35, “Adverse Actions,” and Article 36, “Unacceptable Performance,” of the CBA for related definitions. 7. Responsibilities 7.1. Chief Human Capital Officer, Office of Human Resources, or designee(s), shall establish policies and procedures for disciplinary and adverse actions, in consultation with the Office of the General Counsel (OGC). 7.2. General Counsel, OGC, or designee(s), shall provide legal and technical expertise, advice, and guidance (including the proper processes and procedures to be followed) to supervisory and management officials on disciplinary and adverse actions. 7.3. Supervisors shall comply with the provisions of this administrative regulation and the CBA, as applicable. Except as otherwise noted, refer to Article 34, “Disciplinary Actions,” Article 35, “Adverse Actions,” and Article 36, “Unacceptable Performance,” of the CBA for additional related responsibilities. 3 28 | No FEAR Act Annual Report 2023 COLLECTIVE BARGAINING AGREEMENT BETWEEN U.S. SECURITIES AND EXCHANGE COMMISSION AND THE NATIONAL TREASURY EMPLOYEES UNION Article 34 DISCIPLINARY ACTIONS Section 1 For purposes of this Article, disciplinary actions are written reprimands and suspensions for fourteen (14) calendar days or fewer. Section 2 In effecting disciplinary actions, the Employer endorses the use of like penalties for like offenses and progressive discipline. The Employer will consider the existence of any mitigating and/or aggravating circumstances, the nature of the position occupied by the employee at issue, and any other factors bearing upon the incident(s) or act(s) underlying the action. The degree of discipline administered will be proportionate to the offense and will be determined on a case-by-case basis. Section 3 When the Employer determines that discipline of an employee is appropriate, the Employer may consider informal actions before taking disciplinary action. However, the Employer need not take informal action before taking disciplinary action. The Employer will take a disciplinary action for such cause as will promote the efficiency of the service. Section 4 No advance notice is required for the issuance of a written reprimand. However, a written reprimand will state the specific reasons for the action and include a statement in the written reprimand advising the employee of their rights to challenge the written reprimand. Written reprimands will be placed in the employee's Official Personnel Folder for no more than two (2) years from the date of issuance. 167 FISCAL YEAR 2023 | 29 Section 5 The Employer will follow these procedures when proposing and deciding to suspend an employee under this Article: A. Give the employee advance written notice stating the specific reasons for the proposed suspension. In cases where a disciplinary action is proposed for reasons of off-duty misconduct, the Employer's written notification also will contain a statement of the nexus between the off-duty misconduct and the efficiency of the service. B. Provide the employee with a copy of the information relied upon to support the proposed disciplinary action. C. Grant the employee a reasonable amount of duty time, up to four hours, to prepare their response to the proposed suspension. The Employer may consider a written request from the employee for additional duty time to prepare their response. D. Give the employee the opportunity to reply to the notice orally and/or in writing within seven calendar days from the date the employee receives notice of the proposed suspension. The Employer may consider a written request from the employee to extend the reply period. E. If the employee elects to make an oral reply, the Deciding Official, or their designee, will prepare a summary of the oral reply for the record. The Employer will provide a copy of this summary to the employee and the employee's representative and allow at least one day for comment and/or correction. F. Consider the employee's reply. G. Give the employee a written decision letter concerning the proposed suspension. Normally, the decision will be made by a management official of a higher level than the official who issued the notice of the proposed suspension. The decision letter will be issued prior to the effective date of the suspension, and will contain the Employer's findings with respect to each specification and charge made against the employee in the notice of proposed action and the dates of the suspension. The Employer also will include a statement in the decision letter advising the employee of the Union's right to challenge the suspension. 168 30 | No FEAR Act Annual Report Section 6 Upon request an employee is entitled to representation at any examination by a representative of the Employer in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee. Section 7 An employee against whom a disciplinary action has been taken may grieve that action under Article 32 of this Agreement (Grievance Procedure). For actions effected after a second level management decision (suspensions), the grievance procedure may be bypassed and the Union may elect to proceed directly to arbitration in accordance with Article 33. Section 8 If a disciplinary action is canceled, all documentation relative to that action (or proposed action) in the employee's Official Personnel File will be destroyed, with confirmation of destruction sent to the employee. The Employer will not destroy any documentation required to be preserved under laws, rules, or regulations. 169 FISCAL YEAR 2023 | 31 Article 35 ADVERSE ACTIONS Section 1 For purposes of this Article, adverse actions are suspensions for more than fourteen (14) calendar days, removals (except for actions taken under Article 36 (Unacceptable Performance)), reductions in grade or pay (except for actions taken under Article 36 (Unacceptable Performance)), or furloughs of thirty (30) calendar days or fewer. The provisions of this Article do not apply to the removal of probationary or term employees. The Employer will take an adverse action for such cause as will promote the efficiency of the service. Section 2 The Employer and the Union agree to the concept of progressive discipline. Every situation warranting discipline is different and in some instances, progressive discipline may not be appropriate. In deciding what action may be appropriate, the Employer will give due consideration to the relevance of any mitigating and/or aggravating circumstances, including those listed below. All of these factors may not be relevant in a particular case, and each case must be considered individually. Selection of the appropriate penalty requires a responsible balancing of the factors relevant to the particular case. 1. The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was committed maliciously or for gain, or was frequently repeated; 2. The employee's job level and type of employment including fiduciary role, contacts with the public, and prominence of the position; 3. The employee's past disciplinary record; 4. The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; 5. The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the 170 32 | No FEAR Act Annual Report Employer's confidence in the employee's ability to perform assigned duties; 6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses; 7. The notoriety of the offense or its impact upon the reputation of the Employer; 8. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; 9. Potential for the employee's rehabilitation; 10. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice or provocation on the part of the others involved in the matter; and 11. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Section 3 The Employer will follow these procedures when proposing and deciding to take adverse actions against an employee under this Article: 1. Give the employee at least thirty (30) calendar day advance written notice stating the specific reasons for the proposed adverse action. In cases where an adverse action is proposed for reasons of off-duty misconduct, the Employer's written notification also will contain a statement of the nexus between the off-duty misconduct and the efficiency of the service. 2. Provide the employee with a copy of any information relied upon to support the proposed adverse action. 3. Grant the employee a reasonable amount of duty time, normally no more than eight (8) hours, to prepare their response to the proposed adverse action. The Employer may consider a written request from the employee for additional duty time to prepare their response. 4. Give the employee the opportunity to reply to the notice orally and/or 171 FISCAL YEAR 2023 | 33 in writing within ten calendar days from the date the employee receives notice of the proposed adverse action. The Employer may consider a written request from the employee to extend the reply period unless the proposed action is being taken under the 'crime provision' (5 CFR § 752.404), in which case a request for an extension of the reply period will not be considered. 5. If the employee elects to make an oral reply, the Deciding Official or their designee, will prepare a summary of the oral reply for the record. The Employer will provide a copy of this summary to the employee and the employee's representative and allow at least one day for comment and/or correction. 6. Consider the employee's reply. 7. Give the employee a written decision letter concerning the proposed adverse action. Normally, the decision will be made by a management official of a higher level than the official who issued the notice of the proposed adverse action. The decision letter will be issued prior to the effective date of the adverse action, and will contain the Employer's findings with respect to each specification made against the employee in the notice of proposed action. The Employer also will include a statement in the decision letter advising the employee of their or the Union's rights to challenge the adverse action. Section 4 Upon request, an employee is entitled to representation at any examination by a representative of the Employer in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee. Section 5 An employee against whom an adverse action has been taken may challenge that action in accordance with Article 32 (Grievance Procedure) of this Agreement. The grievance procedure may be bypassed and the Union may elect to proceed directly to arbitration in accordance with Article 33. This would not preclude the employee's option to appeal the adverse action directly to the Merit Systems Protection Board if arbitration is not invoked. 172 34 | No FEAR Act Annual Report Section 6 If an adverse action is canceled, all documentation relative to that action (or proposed action) in the employee's Official Personnel File will be destroyed, with confirmation of destruction sent to the employee. The Employer will not destroy any documentation required to be preserved under laws, rules, or regulations. 173 FISCAL YEAR 2023 | 35 This page intentionally left blank U.S. SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Asec%3A87c25f68deebd737. Public record. Not legal advice.