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.
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.
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 appealable adverse actions on a “preponderance of the evidence” standard, which means that the Agency must prove that the charges for which a VA employee was disciplined more likely than not occurred. This bill would move the Board to a substantial evidence standard, which would only require that the VA show that there is relevant evidence that would lead a reasonable person to support the discipline. The substantial evidence standard is the lesser of the two standards, and will make it easier for the VA to not only remove employees, but to have that decision upheld by the Board.
If you are a VA employee, and facing disciplinary action, it is imperative that you do not wait to seek legal advice. Our attorneys are well versed in the procedural requirements and disciplinary process, and can assist you in protecting your livelihood. Call (202) 462-6036 or email us today to schedule a consultation with an experienced federal employment attorney.