In recent years, perhaps no law has had a greater effect on the Department of Veterans Affairs employees as has The Veterans Affairs Accountability and Whistleblower Protection Act, codified in part in 38 USC 714. The Act has provided the Agency a “fast track” to suspend, demote, or remove Title 5 VA employees.
Under this authority, not only are deadlines for an employee’s MSPB appeal rights shortened from 30 calendar days to 10 business days, but the burden of proof on the Agency was lessened to a much lower standard, making it even easier for the VA to prove their case.
However, on November 16, 2020, the Federal Labor Relations Authority (FLRA) issued a major win for federal employees. This decision will likely require the VA to reinstate, with back pay, thousands of employees who were removed for performance deficiencies under the Act.
In its decision, the FLRA upheld an arbiter’s ruling that the Act did not supersede the AFGE Collective Bargaining Agreement (CBA) which requires the VA to institute a performance improvement plan (PIP) to allow an employee an opportunity to improve before having a removal imposed.
In this case, the VA argued that the Act superseded the CBA, and therefore Title 5 employees could be removed for performance deficiencies without going through the PIP process. This argument initially appeared valid too, since an act of Congress would in fact trump an agreement between a federal agency and a union. Had the VA’s argument prevailed, it would have marked another blow to the rights of federal employees at the VA by completely abrogating the PIP process in these cases.
In its response, and in the opinion of the FLRA, AFGE correctly argued that while the Act lays out new procedures for removal actions under the authority of §714, these procedures only take effect once a disciplinary action is proposed.
The PIP process takes place prior to any discipline being proposed and therefore is a completely separate process not covered by the Act. As a result of this decision, it appears that the Department of Veterans Affairs will have to reinstate all employees who were removed under Section 714 for performance deficiencies and who were not placed on a PIP prior to having their removal proposed. This would amount to hundreds, if not thousands, of reinstatements with retroactive back pay.
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The Law Office of Aaron D. Wersing is a highly specialized and experienced federal employment law firm who assists wrongfully terminated federal employees from across the country.
Attorney Aaron D. Wersing understands the new, complex issues you face under §714 and vows to work tirelessly to protect your career. Combining extensive legal knowledge and experience with empathy and commitment allows us to help protect your legal rights and get the justice you deserve
If you believe you have been wrongfully terminated under federal employment protections, whether it’s under 38 USC §714, Chapter 75, Chapter 43, or as a probationary employee, contact us or give us a call at (833) 833-3529 for help.