For decades, AFGE members working at the Department of Veterans Affairs’ medical facilities and offices across the country have bravely stepped up and reported mismanagement that often endangers veterans and employees alike.
In 2011, a VA psychologist at the Wilmington, Delaware VA Medical Center (VAMC) testified before the Senate about staffing shortages, leading to additional hiring of mental health professionals throughout the Veterans Health Administration.
In 2012, when plumbers at the Pittsburgh, Pennsylvania VAMC were asked by management to cover up a deadly legionella outbreak, their AFGE local president testified before Congress and waged a long battle to ensure workplace and patient safety.
In 2014, at the Phoenix, Arizona VA Medical Center VAMC, an emergency room physician and patient scheduler represented by AFGE reported severe short staffing and wait list gaming.
The same year, at the Tomah, Wisconsin VAMC, the union’s local president and a psychologist reported improper opiate prescribing practices.
These courageous VA employees rely on critical statutory and contractual rights that allow them to report mismanagement knowing that their union can help them fight back against unjustified terminations, demotions, suspensions, and other forms of retaliation.
But right now, employee protections have been weakened to the point that they undermine the ability to report wrongdoing, mismanagement, and unsafe conditions.
AFGE and our National Veterans Affairs Council (NVAC) represent 260,000 VA employees, including over 100,000 veterans. As the union that VA employees turn to when they need protection to report mismanagement, here are our recommendations on how to protect these courageous whistleblowers:
1. Strengthen collective bargaining rights and union protections
AFGE applauds the House Veterans’ Affairs Committee’s passage of the VA Employee Fairness Act. We are urging Congress to swiftly pass this bill, fixing an unjust situation where certain workers do not have full collective bargaining rights and protections that other VA employees have had for decades.
Due to the VA’s narrow interpretation of their collective bargaining rights under the law, Title 38 clinicians, including physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries, are not allowed to raise grievances about things like staffing shortages that undermine patient care or to file a grievance when their paycheck is incorrect.
Adequate staffing is even more important during a pandemic like COVID-19, and it is outrageous these front-line workers cannot even raise the issue if they are short-staffed. In addition, they are also not allowed to challenge management violations of the VA’s own policies.
2. Fix flaws in the VA Accountability Act
Congress needs to restore protections for VA employees when they report wrongdoing. To do that, Congress needs to rectify two of the fundamental flaws of the VA Accountability and Whistleblower Protection Act of 2017.
- Restore the standard of evidence required for taking action against an employee to a “preponderance of the evidence” standard. When the Accountability Act was enacted, it lowered the evidentiary standard from a “preponderance of the evidence” standard, which requires the VA to provide a majority of the evidence or 50% of the evidence, to the much lower “substantial evidence” standard.
This has allowed the VA to use this law not against the senior executives for whom the VA claimed it needed this disciplinary standard, but instead against rank-and-file employees who are identifying problems on the ground to protect veterans and employees. By reinstituting the “preponderance of the evidence” standard for employees, the committee would be restoring the integrity of the accountability process that never should have been taken away.
- Restore the power of the Merit Systems Protection Board (MSPB) to mitigate the proposed disciplinary action taken against employees, including potential whistleblowers.
When the Accountability Act was enacted, it eliminated the MSPB’s ability to determine that the VA had proven that an employee deserved discipline, but that the VA had sought too harsh a punishment. The only options available to the MSPB are to accept or reject the VA’s argument and punishment decision in full. By restoring the MSPB’s ability to mitigate or lessen a punishment, Congress would protect employees and reduce the need for people to attempt to claim whistleblower status and appeal their cases to the Office of Special Counsel, reducing any backlogs that may exist.
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