Changes to VA Employees’ Due Process Rights and Appeals Procedures

On June 23, 2017, President Trump signed the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”. A full text can be found electronically at: https://www.congress.gov/bill/115th-congress/senate-bill/1094/text. This legislation received broad bipartisan support in Congress, passing the House by a 368-55 margin and receiving a unanimous vote in the Senate. Politicians, concerned citizens, and veterans’ groups have lauded its passing, believing that such a measure is necessary to enact changes to the VA’s employee infrastructure and turn around the much-maligned agency. 

On the other hand, federal employee unions have condemned the bill, claiming it does little to fix or strengthen veterans’ services, and is instead another attempt to dismantle civil service protections. During a recent Senate hearing, J. David Cox, Sr., President of the American Federation of Government Employees (AFGE), warned, “[a]lthough marketed as a bill to make it easier to fire bad employees, the proposals are designed to kill off and bury the apolitical Civil Service. It makes it just as easy to fire a good employee, an innocent employee, as it will be to fire a bad employee.”

The implications of this Act are far-reaching, and will significantly curb civil service protections for VA employees, to include: 

  • replacing the normal 30-day notice period with a 15-business-day timeframe in which removals, demotions, and suspensions will be proposed and decided;
  • prescribe that the employee’s response be provided no later than 7 business days after receipt of the proposed removal, demotion, or suspension;
  • lowering the burden of proof needed to sustain an adverse action against an employee;
  • prohibiting Merit System Protection Board (MSPB) administrative judges from mitigating the imposed penalty if the Secretary’s decision is supported by substantial evidence; 
  • allowing the Secretary to direct a removed employee’s annuity be reduced by the amount of covered service, if convicted of certain crimes; and
  • establishing a potential obligation to repay previously-earned bonuses, awards, or relocation expenses.

Despite the vocal disagreements on both sides of this issue, it seems clear that this Act could serve as a model for other federal agencies in the future. Federal employees are rightfully concerned with this encroachment on established civil service protections. Our veterans deserve real and lasting improvements at the VA, but it remains to be seen how an erosion on the rights of federal workers would bring about these necessary changes. 

If you or someone you know is facing proposed adverse action, contact Alison R. Wills, an experienced federal labor and employment attorney at Leger Ketchum & Cohoon, PLLC. Alison understands the nuances of federal employment law, and will work tirelessly to provide a robust rebuttal to help you keep your job. Contact Alison at (832) 764-7203 or by electronic mail at awills@lkclawfirm.com for a free consultation today.

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