Unions At Odds Over VA Employee Accountability Bill

Unions representing rank-and-file employees at the Veterans Affairs Department are at odds over legislation that would change the disciplinary process for VA poor performers.

The National Federation of Federal Employees, which represents nurses, doctors and other health care professionals at 17 VA facilities across the country, on Wednesday urged senators to oppose the Veterans First Act, calling it a “misguided attempt at reform that will not improve veterans’ care.” Specifically the bill, which includes several measures aimed at strengthening accountability among the department’s more than 300,000-person workforce, “would undermine the integrity of services available to our nation’s veterans by eviscerating important safeguards protecting VA employees from undue political influence,” said a May 25 letter from NFFE President William Dougan to senators.

But the American Federation of Government Employees, which represents roughly 230,000 VA workers, supports the nearly 400-page omnibus that is now awaiting consideration by the full Senate.

“We share the same concerns as other employee groups that attempts to undermine due process have no place in a 21st century civil service,” said a statement from Tom Kahn, AFGE’s legislative director. “Separating political decisions from personnel decisions is a vital firewall for ensuring the fairness and effectiveness of the government workforce. We have worked diligently with Congress and the administration to defend employees’ basic right to due process, and have achieved vast improvements to critical parts of the bill as a result. For that reason we support passage of the Senate bill.”

AFGE opposed an earlier version of the Veterans First Act, lobbying lawmakers to ease some provisions related to reprimands, probationary periods and retroactive changes to employees’ performance evaluations. And VA Secretary Bob McDonald in an April 7 letter to Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., said “we continue to remain deeply concerned with discussions of eliminating protections of General Schedule employees, which would undermine the ability of VA’s dedicated civil servants to serve our veterans.” McDonald’s letter did not mention any similar concerns about the bill’s accountability measures related to senior executives.

The union succeeded in its negotiations with the committee, as many of the employee accountability provisions it opposed were either watered down, or taken out altogether. Some, including Sen. Marco Rubio, R-Fla., have criticized the bill for being too soft on disciplining rank-and-file employees.

“It’s unfortunate the labor unions have so far gotten their way in writing the VA accountability provisions in the Senate’s VA reform bill,” the former presidential candidate said in May 17 statement. “The current VA bill includes too many loopholes that let bad VA employees off the hook, and either we work through it and get it fixed in the coming weeks, or this bill will not be rammed through.” Isakson had said he wanted to get the bill to President Obama before Memorial Day but it’s still awaiting a floor debate.

In the draft bill, any reprimands or admonishments would have become part of an employee’s permanent personnel file, unless or until the secretary decided to remove them. But that changed between the draft and the final version of the bill, which says that reprimands and admonishments will automatically disappear after five years if they are still in an employee's file, and the secretary could remove them after three years. Additionally, supervisors would be required to determine at the end of an employee’s probationary period – typically one year – whether that employee demonstrated success and “should continue past the probationary period.”

If they don't weigh in within a certain time frame (60 days), the employee automatically graduates from probation. That provision also is different from what was in the draft version, which more strongly tied a supervisor's assessment to the length of the probationary period, essentially increasing the amount of time an employee could be on probation. It’s much easier to fire employees during their probationary period, before they become full-fledged members of the federal workforce.

Even with the tweaks, NFFE is still against the current bill. “Probationary employees are incredibly vulnerable to retaliation, discrimination, and other prohibited personnel practices, all the while maintaining no appeal rights or right to advance notice of termination,” said the letter. “The extension of probationary periods would serve no purpose other than to silence potential whistleblowers of any protections necessary to expose abuse early in their careers.”

The union also took issue with the shorter disciplinary process outlined for VA employees in the legislation, saying it “would severely restrict any meaningful opportunity by the employee to respond to charges and would limit the time available to the agency to meaningfully consider the employee’s response to charges.”

The bill seeks to expedite firing for all department employees by reducing the amount of time an employee has to respond to proposed disciplinary actions. Right now, agencies have to give employees at least 30 days’ notice of a punishment, such as removal or suspension. An employee has a “reasonable” amount of time of not less than 7 days to respond and defend themselves. The VA omnibus would give department employees facing removal at least 10 days’ notice of the proposed action, and another 10 business days to respond. If they choose to appeal to the Merit Systems Protection Board, they would have to do so within 10 days of the agency’s decision. MSPB would have to render a decision within 90 days. (Currently, an employee has to file an appeal within 30 days of the agency’s decision, and MSPB has to issue a decision in appeals cases within 120 days.)

“Reducing the MSPB’s appeal and processing timeline would negatively impact both the employee and the agency,” Dougan said in the letter.

Another major federal employee union, the National Treasury Employees Union, does not represent any VA employees, and has not commented on the omnibus bill, or the employee accountability provisions in it.

The Veterans First Act arguably contains stronger accountability measures for senior executives. The legislation would take away their appeal rights to MSPB, instead giving them the opportunity to appeal adverse actions to an internal department review board. The secretary would have the final say over the type of punishment meted out, including firing, suspension and demotion. The entire grievance process would be limited to 21 days, and employees subject to the most serious penalties could appeal the internal board’s decision to outside judicial review.

“If applied more broadly in the future to non-senior executive employees, this approach will establish an employment-at-will doctrine toward federal civil service employment, opening the door to partisan political abuse in myriad ways,” said a May 18 letter from 12 federal employee advocates, including the Senior Executives Association, Federal Managers Association, and the National Active and Retired Federal Employees Association, to the Senate leadership.