On September 14, 2016, the US House of Representatives passed HR 5620, the VA Accountability First and Appeals Modernization Act of 2016.
When we dig into the bill, there is a lot more to it than the title might lead you to believe. In fact, the bill (which has not yet passed the Senate) contains a number of provisions that most advocates for the federal workforce consider to be substantial lessening of civil service protection.
HR 5620 includes both whistleblower and employee discipline/appeals language. It also has different provisions for Senior Executives and the rest of the workforce. This post focuses on the workforce provisions that affect everyone but Senior Execs. The next post will address the SES changes.
Here are the key workforce provisions of the bill:
The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. Note: this provision also allows the Secretary to reduce an employee’s pay within a grade level.
Pay and Administrative Leave
- Employees demoted under the proposed provisions would immediately see their pay reduced to the new rate of pay.
- Demoted employees could not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty.
Notice to Congress
Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary must notify Congress of the removal or demotion and the reason.
- The period for notice and response is reduced to no more than 10 calendar days.
- The performance provisions of Chapter 43 (including performance improvement periods) would not apply to a removal or demotion under this section.
- The time to appeal to MSPB is reduced to 7 days after the date of a removal or demotion.
- Removals or demotions could be appealed to the Merit Systems Protection Board, subject to new restrictions imposed by the bill.
Expedited Review by MSPB
- MSPB has to issue a decision not later than 60 days after the date of the appeal.
- MSPB must uphold the decision of the Secretary to remove or demote an employee under subsection (a) if the decision is supported by substantial evidence.
- MSPB decisions may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5.
- If MSPB cannot issue a decision in 60 days, the removal or demotion is final.
- MSPB then has 14 days to notify Congress of the reasons why MSPB did not issue a timely decision.
- MSPB cannot stay any removal or demotion.
- During the period of the appeal, the employee may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
- To the maximum extent practicable, the Secretary must provide MSPB with information and assistance as may be necessary to expedite the appeal.
Recoupment of bonuses or awards paid to employees of Department
Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5. The employee has to be notified and given an opportunity to respond, along with “an opportunity to appeal the order to another department or agency of the Federal Government.” If the agency hearing the appeal does not make a decision within 30 days, the Secretary’s decision stands.
The 5 Biggest Takeaways
- If it becomes law, it will make it easier to fire employees in the Department of Veterans Affairs. The General Provisions section shifts the reason for a removal from what is typical under Title 5 (the provisions that cover most employees). Title 5 allows OPM to establish the regulations for removals and demotions, and says they can be done “…only for such cause as will promote the efficiency of the service.” Getting rid of the “efficiency of the service” provision and replacing it with a Secretarial determination is a big change. It replaces a standard supported by years of case law with something that clearly is intended to give the Secretary more authority to determine when a removal or demotion is needed and appropriate.
- Congress intends to keep this issue alive for a long time. The Notice to Congress is a clear indication that the Congress intends to continue to “help” the Executive Branch through oversight of executive decisions regarding personnel. It does not pose a separation of powers problem because it is just notification and does not grant any new authority to the Congress.
- A ‘rush to judgment” is apparently no longer a bad thing. The Procedure section is important. It reduces the total time for notice and response to only 10 calendar days and the time to appeal to MSPB to only 7 days. That makes it harder for an employee or his/her representative to prepare a response to the charges and mount an effective defense. Elimination of the provisions of Chapter 43 of Title 5 means there is no performance improvement period (PIP) for poor performers.
- When the government does not do its job, the government wins. The MSPB provisions are where we find the biggest changes. MSPB is given only 60 days to complete its process and issue a decision. If it does not complete it in time, the employee loses. In addition, the standard for MSPB’s review is changed to require MSPB to uphold the decision to remove or demote an employee if the decision is supported by substantial evidence. “Substantial evidence” is a lighter burden of proof. It means the department must provide enough evidence that a reasonable mind could accept as adequate to support its decision. The standard that applies in removals and demotions is currently “a preponderance of the evidence.” That means there has to be more evidence in favor of the action than evidence against it. The change that strikes many folks as unfair is that the employee loses if MSPB does not issue a timely decision. The idea that an employee would be punished for the government failing to act is new to federal personnel law.
- Faster firing with less review does not mean there will be a lot of firings. As we have seen with probationary employees (the easiest firing process there is), the ability to fire someone does not mean managers will actually do it. The bill does not require the training for managers and the revised selection processes to become a manager that would help managers to step up and deal with employee misconduct.
Feds outside of VA may wonder why they should care about this bill. After all, it applies to VA and no one else.
The truth is that these provisions are harbingers of things to come for the entire federal workforce. If the bill becomes law and is sustained in court (and that is not guaranteed), the next logical step that its supporters will take is to expand the provisions government wide.
My belief is that an approach to leading an organization that focuses on who you can fire misses the greatest opportunities to improve an agency. The Department of Veterans Affairs has 368,000 employees. Even if we assumed 10% should be fired, that still leaves over 330,000 employees who carry out the vital work of the department. I would like to see far more attention paid to developing and supporting the 90% and helping them do a great job for our Veterans.