The law lowered the department’s burden of proof in an appeal, and stopped the MSPB from changing penalties imposed by management. Image: Jonathan Weiss/Shutterstock.com
The VA and two unions representing its employees have opposed recently proposed legislation seeking to revive and strengthen a 2017 law giving management a stronger hand in disciplinary practices, authorities that the VA stopped using several months ago.
Among other things, the 2017 law shortened the notice and response time within the VA, shortened the time that the MSPB can consider an appeal, lowered the department’s burden of proof in an appeal, and limited the MSPB to either overturning or affirming a penalty, with no option to lessen it. In stopping its use of those authorities, the VA said that they had mainly tied it up in litigation that resulted in court and MSPB decisions narrowing their reach.
Companion bills (HR-4278 and S-2158) in the House and Senate would overturn those rulings and add several new pro-management provisions. Those would include ending a requirement to give employees an opportunity to improve prior to discipline for alleged poor performance, and applying to all supervisory employees the even more limited rights for SES members there under a separate law.
In testimony before a House subcommittee, a VA official repeated the department’s view that standard disciplinary practices are sufficient for its needs and that reviving the broader ones would create confusion and lead to yet more legal challenges, “potentially resulting in overturned adverse actions and substantial monetary damages.”
The unions put their objections in stronger terms. The AFGE said the authorities “disproportionately harmed lower paid federal workers” and not higher-level officials who were responsible for a series of scandals that led to enactment of the 2017 law. The NFFE called that law an “assault on legitimate due process” and a “flagrant violation of the most basic legal principles.”
However, the Veterans Affairs Committee may advance the bill despite that opposition. “We cannot afford to backslide and wait for the same tragedies that drove the popular, bipartisan support behind the 2017 Accountability Act to repeat themselves before we act,” said Rep. Mike Bost, R-Ill., chairman of the committee and a main sponsor of the bill.
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