FEDweek

Some Details to Come on VA Employee Rights Restrictions

Indianapolis, US - June 7, 2016: Emergency Room Entrance at the Roudebush VA Medical Center I

President Trump has signed into law (P.L. 115-41) a bill reducing the disciplinary appeals rights for VA employees and giving the department new powers over several other personnel policies, although some details remain to be decided regarding how those changes will be put into effect.

The next steps will be watched closely as political leaders consider whether to pursue making similar changes government-wide. Such an expansion has been expected ever since a 2014 law restricted appeals rights only for VA senior executives. Since the VA bill affects about one in six employees outside the intelligence community and the independent Postal Service, it already represents one of the most significant changes to civil service laws in recent years.

Under the newly signed legislation, employees will have only 10 work days to respond internally to notices of proposed discipline of removal, demotion or suspension of more than 14 days; the department will have to make a final decision within 15 work days regardless of whether the employee responds; employees would have only 10 work days to appeal to the Merit Systems Protection Board, where a hearing officer would have a 180-day deadline to decide a case; and both the hearing officer and the full board on an appeal would have to side with the agency if only “substantial” evidence supported the agency’s position and neither could lessen the choice of penalty, only affirm or reject it in total. During the entire process, employees facing demotion would receive the lower rate of pay immediately, and those suspended or fired would be on unpaid status, unless they are allowed to use personal paid leave; those who prevail would receive back pay.

SES members at the department could no longer appeal to the MSPB but rather would have to appeal proposed discipline through an internal grievance-type system whose terms are not defined–presumably it is to mean review by high-level officials not involved in making that decision.

The law also allows the VA to require employees to pay back performance awards and other forms of cash payments, as well as relocation expenses, under conditions that are only broadly defined. Similarly, the department would be able to deny service credit toward retirement benefits for employees convicted of work-related felonies, for the period the department determines the misconduct was occurring. Each of those provisions has certain notice and internal appeal rights, along with the right to appeal to OPM–although those processes are not defined.

Filling in the details could take some time, especially given the high level of attention to the law. Federal employee organizations will watch for anything that could amount to a violation of due process rights, as they did with the original authority applying only to senior execs–which the Obama administration ultimately dropped in the face of a lawsuit contending that that process was unconstitutional.