Fedweek

Major disciplinary actions have accelerated at the VA in the year since enactment of a law (P.L. 115-41) reducing the appeals rights for its employees, VA figures show.

Over the first half of 2017, before the law was enacted, the department had taken major disciplinary action against 746 employees—525 removals, 194 suspensions of more than 14 days and 27 demotions. In the second half, the rate nearly tripled to a full-year total of 2,058—1,484 removals, 488 suspensions of more than 14 days and 86 demotions.

Through the first four months of this year that trend has continued, with a total of 974—912 were removals, 26 suspensions of more than 14 days and 36 demotions—which projected out over a full year would bring the total of major actions above 2,900, about four times the rate of before the law was enacted.

The VA law is being watched closely for its impact, since it is widely seen as a precedent for revising federal employee due process rights government-wide.

One of the key provisions is that employees have only 10 work days to respond internally to notices of proposed major discipline, and the department has to make a final decision within 15 work days regardless of whether the employee responds. Unions and some Democrats argue that those deadlines effectively deny employees a chance to improve their performance before the agency makes a final decision on potential discipline. (One of the recent executive order from President Trump requires limiting “performance improvement periods,” which commonly last up to 120 days, to no more than 30 days government-wide.)

Another union criticism of the law is that it is being used disproportionately against lower-level employees even though the law was a response to misconduct by higher-level officials in the patient scheduling scandal. VA’s figures show that of the 974 major disciplinary actions through April this year, 19, or 2 percent, were against supervisory employees. According to an OPM database, of the VA’s roughly 380,000 employees at year-end 2017, about 19,000, or 5 percent, were supervisory.

Under other key provisions: VA employees have only 10 work days after a final agency decision to appeal to the MSPB, where a hearing officer has a 180-day deadline to decide a case; 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. The impact of those changes so far is unclear since the merit board has lacked a quorum and thus has been unable to issue decisions on appeals since early last year.

Also under the law, SES members at the department can no longer appeal to the MSPB but rather have to go through an internal grievance-type system.