On June 13, 2017, the House joined the Senate in approving a VA reform bill aimed at making it easier to discipline employees of the Department of Veterans Affairs. As President Trump has already stated he will sign the bill as soon as it reaches his desk, it appears certain that substantial changes are going to be made to the VA disciplinary process.
A new procedure for employee discipline
First, the S. 1094 will create a new framework for the discipline of VA employees, speeding up the process significantly. It will require the VA to give notice of proposed discipline, accept a response, and make a decision on the proposal within 15 days. Non SES-employees will still have a right to appeal to the Merit System Protection Board, but must file the appeal within 10 days of the adverse action, as opposed to the current 30 day deadline. Furthermore, the Board will be required to issue a decision on the case within 180 days.
While non-SES employees would still have the right to appeal to the Board, S. 1094 strips away SES-employees right to appeal to the Board. SES employees will need to appeal their discipline through an internal appeals process that will take no more than 21 days. However, should the internal appeals decision still be adverse, the SES-employee may appeal the Agency’s decision to a U.S. District Court.
A lower standard of proof for discipline
Second, and perhaps most controversially, S.1094 establishes a new evidentiary standard used by the Board in reviewing issues of discipline. The Board currently reviews removals and other adverse actions on a “preponderance of the evidence” standard. This means the Agency must prove it is more likely than not that the employee engaged in the charged misconduct. The bill would change the standard to substantial evidence, which only requires the VA to show that there is relevant evidence to support the discipline. This will make it easier for the VA to discipline employees and harder to win on appeal before the Board.
If you are a VA employee, and facing disciplinary action, contact Alan Lescht and Associates today. We will help you navigate the federal disciplinary process. Call us at (202) 462-6036 or email us to schedule a consultation with an experienced federal employment attorney.