Smetna Chhabra, an associate at The Federal Practice Group, pens a blog for FedSmith on latest in VA Whistleblower Protection Act changes
Posted By smay || 28-Jan-2019
If you are an employee at the Department of Veterans Affairs, you have likely heard that a new law limits your rights, even while portending to protect whistleblowers. If you are a VA employee, and especially if you are a VA employee who has blown the whistle by making a protected disclosure, you do not want to be blindsided by a proposed suspension, demotion or, even worse, a termination or removal. What do you do? Who do you consult? What are your options you have going forward?
In this instance, 38 U.S.C. § 714 is the law that governs adverse actions, including suspensions of more than 15 days, changes to a lower grade, and removals taken against VA employees. The law allows for the Secretary (or the appropriate designee within your supervisory chain) to remove, demote, or suspend a covered individual who is an employee of the VA if the Secretary determines that the employee’s performance or misconduct warrants a removal, demotion, or suspension.
Below are the top 10 things VA employees should know about 38 USC §714:
- The law applies to all VA employees except individuals:
- occupying a senior executive (SES) position as defined in 38 U.S.C. § 713(d);
- appointed pursuant to §§ 7306, 7401(1), 7401(4), or 7405 of Title 38 (if you aren’t sure, check your appointment SF-50);
- who has not completed a probationary or trial period; or
- who is a political appointee.
- The timelines for the adverse action process have been shortened. An employee has only seven (7) business days to reply to any proposed adverse action, and the Deciding Official shall issue their decision on the adverse action proposal no more than fifteen (15) days after the proposal was issued to the employee (or within 8 days after the reply if the employee replies 7 days after the proposal was issued).
- The procedures of Chapter 43 of Title 5, which governs adverse actions based on performance, are no longer applicable to VA employees, which means that the VA will no longer be using Performance improvement Plans (PIPs). Instead, if at any point your supervisor believes you are not meeting your critical elements of your performance standards, your removal can be proposed without the VA providing any opportunity for training or improvement.
- The VA’s burden of proof to sustain any charge against an employee has been lowered from preponderant evidence (51%) to substantial evidence. This is defined 5 C.F.R. § 1201.56(c)(1) as evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, or evidence that a reasonable person would accept as adequate to support a conclusion. In actuality, it means the VA needs very little substantiation or corroboration of any claims it makes about an employee’s alleged misconduct.
- The Proposing and Deciding officials are no longer required to consider the Douglas factors in determining a reasonable penalty for the alleged misconduct; however, the Proposing and Deciding Officials are still supposed to issue a reasonable level of discipline that is commensurate with the facts of the case. The Douglas factors is the criteria that supervisors must consider in determining an appropriate penalty to impose for an act of employee misconduct. See Douglas vs. Veterans Administration, 5 M.S.P.R. 280 (1981).
- The procedures, including the timelines, provided in the law supersede any conflicting timelines or processes set forth in any collective bargaining agreements (CBA).
- An employee may file an appeal of a removal, demotion, or any suspension of more than 14 days with the U.S. Merit Systems Protection Board (MSPB), but no later than ten (10) business days after the decision has been issued (previously VA employees, like other executive agency employees, had 30 days to file an MSPB appeal).
- The MSPB has 180 calendar days to decide the appeal.
- The MSPB does not have the authority to mitigate or lessen the level of discipline imposed by the Agency if the decision is supported by substantial evidence. In other words, even if the VA removed a years’ long employee for a relatively minor offense, the MSPB Administrative Judges are powerless to lessen the penalty to something more reasonable, such as a suspension.
- If an employee believes that their proposed discipline is the result of whistleblower retaliation, they may file a prohibited personnel practice complaint with the U.S. Office of Special Counsel (OSC) or with the VA’s Office of Accountability and Whistleblower Protection (OAWP), and then the adverse action can only be taken either with the approval of OSC or with consultation with the Office of General Counsel (OGC) and/or the OAWP.
Smetna Chhabra is an Associate at the Federal Practice Group and has substantive experience in federal employment law, including representing federal employees before the EEOC, MSPB, and OSC.