Federal workers governmentwide should keep a close watch at recent changes that have been made to the disciplinary process for employees at the Department of Veterans Affairs. While the changes only affect VA workers at this point, many in Congress likely will be looking to extend these reforms governmentwide.
These changes, part of a bill that President Trump signed into law in June, will make it easier for VA managers to fire workers and harder for employees to defend themselves against unfair disciplinary actions.
For Title 5 and Title 5 Hybrid VA employees, the changes apply to adverse actions – removals, demotions, and suspensions of more than 14 days. They do not apply to part-time, temporary, and term Hybrid employees. These employees remain under the existing procedures and timelines in law and the Master Agreement.
There also are changes to the timelines applicable to Title 38 employees.
Below is a summary of the major changes that you need to know about. More details can be found in AFGE’s guidance document.
Lower Burden of Proof
The new law lowers the burden of proof needed for the VA to take an adverse action against a Title 5 or Hybrid employee.
The new standard is “substantial evidence,” meaning an employee can be disciplined if between 30 percent and 40 percent of the evidence points to the employee’s guilt. Previously, the VA had to meet the higher “preponderance of evidence” standard, in which more than 50 percent of the evidence supports the disciplinary action.
This means that even if 60 percent to 70 percent of the evidence does not support the action, the discipline can still be upheld.
This new burden of proof standard does not apply to VA medical professionals with full Title 38 rights. The standard of evidence for Title 38 employees remains proof by preponderance of the evidence.
Another change reduces the timeframe for an employee to respond to a proposed adverse action and for the agency to issue its final decision.
The new timeframe is 15 business days from proposal to final decision, with seven business days set aside for the employee to respond to the action.
These new timelines apply to all VA employees, regardless of which personnel system they are in: Title 5, Hybrid, or Title 38.
The law also shortens the time for an employee to appeal the agency’s final decision.
For Title 5 and Hybrid employees, appeals now must be filed within 10 days of the final decision to the Merit Systems Protection Board or through the negotiated grievance procedure. Title 38 employees, who do not have MSPB appeal rights, will have 7 days to file an appeal with the Disciplinary Appeals Board when the action involves professional conduct and competence. For other actions affecting Title 38 employees, the timelines in the Master Agreement still apply.
All or Nothing
Another major change is that MSPB administrative judges no longer will be able to mitigate, or reduce, penalties imposed by the agency on Title 5 and Hybrid employees.
If a judge believes that the penalty imposed by the agency is too severe, the only thing the judge can do is overturn the adverse action entirely.
Penalties for Title 38 employees still may be mitigated by the Disciplinary Appeals Board.
Impact on Performance Improvement Plans
It’s unclear at this point whether employees still will be given a period of time to improve their performance before the VA imposes an adverse action.
It is AFGE’s position that Performance Improvement Plans (PIPs) still apply, although VA has said it believes PIPs no longer are required.
What Locals Should Do Next
VA locals should send any adverse actions proposed under this new law to AFGE’s General Counsel’s Office to ensure they comply with the new deadlines.
Proposed actions should be emailed to AFGE Deputy General Counsel Cathie McQuiston at firstname.lastname@example.org .