VA, AFGE support parts of bipartisan bill to refine how agency fires poor performers

The Department of Veterans Affairs says it supports many elements of a bipartisan bill that would refine its process for firing employees accused of misconduct or poor performance.

VA’s top human resources official told lawmakers Wednesday that the department endorses core elements of the 2023 Leadership, Engagement, Accountability, and Development (LEAD) Act.

The bill would standardize the way VA builds a case against employees who face allegations of misconduct or poor performance, and would train the entire VA workforce on the ins and outs of the process.

VA opposed efforts from lawmakers earlier this year to bring back its ability to fast-track the firing of employees, using a lower standard of evidence to prove misconduct or poor performance.

Several legal challenges in recent years blocked the VA from using that expedited disciplinary process on most of its employees.

VA Chief Human Capital Officer Tracey Therit told the Senate VA Committee on Wednesday that the LEAD Act “fits so much better into what we need to do to make our department more accountable in the future.”

“What we have seen with the legal challenges in the courts, as well as with the labor partners, is an opportunity to strengthen our processes and procedures — not just on the back end, when it comes to proposing and deciding an action, but the need for that increased consistency and improvement in our policies and procedures,” Therit said.

Committee Chairman Jon Tester (D-Mont.) introduced the LEAD Act, along with Committee Ranking Member Jerry Moran (R-Kan.) and Sen. Mike Rounds (R-S.D.) this summer.

Tester said Wednesday that the LEAD Act will improve the disciplinary procedures VA already has in place, and will “ensure past mistakes simply do not happen again.”

“This bill will help the VA hold bad actors accountable by giving employees the knowledge and the processes to take disciplinary action against bad actors that will stick,” Tester said. “When it comes down to it, VA cannot repeat past mistakes when providing veterans with the care and the benefits they’ve earned, or cut corners, when trying to discipline employees.”

Therit said the VA generally supports the LEAD Act, as long as lawmakers make technical adjustments to the bill’s wording, and support funding for VA to implement the bill.

The LEAD Act, she added, meshes with VA’s existing policies and procedures when it comes to handling cases of alleged misconduct and poor performance.

Therit said the VA supports a provision in the LEAD Act that would establish a Transparency, Engagement, Accountability and Management (TEAM) Office, which would consolidate several oversight functions at the Veterans Health Administration.

The American Federation of Government Employees also supports elements of the bill.

AFGE, in written testimony to the committee, said it supports sections of the bill that would improve training on how to process adverse actions against VA employees.

“If managers are appropriately trained on how to correctly implement discipline at the VA, including on how to correctly address issues related to due process, civil service protections, and collective bargaining agreements, the VA will make fewer mistakes in future, and lessen the number of appeals and ensuing litigation. This will better serve the VA, employees, and the veterans they serve,” AFGE wrote.

The union said it also approves of many of the studies and reports the bill requires, which would help Congress oversee VA operations.

“AFGE stands ready to work with the committee and the VA to address the workforce issues currently facing the department and find solutions that will enable VA employees to better serve our nation’s veterans,” the union wrote.

AFGE this summer reached a settlement with VA to reinstate thousands of employees terminated for minor offenses under the 2017 VA Accountability and Whistleblower Protection Act.

Therit said the VA will continue to “use the existing authorities that we have to hold employees accountable,” but said the department is open to making improvements to that process.

According to VA’s 2023 all-employee survey, one in four employees do not feel comfortable disclosing a suspected violation of law, rule or regulation without fear of reprisal.

“I don’t want any views on these bills to indicate that we are happy with the status quo, or we don’t see opportunity to improve and do better,” Therit said. “We know there’s still inconsistency and how actions are executed in the field, we know that things still take too long. And that’s why we want to work with this committee on something like the LEAD Act.”

House and Senate Republicans, however, continue to support an alternative bill that would once again give VA authority to fast-track the firing of VA employees accused of misconduct or poor performance – and to use a lower standard of evidence and fewer civil service protections.

Lawmakers introduced the Restore VA Accountability Act, after the VA announced this spring that it is no longer using authorities in the 2017 VA Accountability and Whistleblower Protection Act to fast-track the firing of employees.

However, in recent years the U.S. Court of Appeals for the Federal Circuit, the Merit Systems Protection Board, independent arbitrators and the Federal Labor Relations Authority have reined in the VA’s authority to discipline employees under this fast-track process.

Therit said the VA, following those rulings, was unable to use its fast-track disciplinary procedures for a “large portion of its workforce,” and that the department could only use those authorities for about 16% of its total workforce.

However, Sen. Bill Cassidy (R-La.) said the 2017 law “improved employee satisfaction, to have bad employees held accountable.”

“They know that they’re working hard, and there’s an occasional apple and that bad apple reflects upon them all,” Cassidy said.

Sen. Tommy Tuberville (R-Ala.) said 74 former VA employees in his state are getting their jobs back, following the department’s settlement with AFGE. He said that in total, about 4,000 former VA employees have been reinstated following the settlement.

“They were people that just absolutely either did a terrible job, didn’t care about what they’re doing, and they got laid off,” Tuberville said. “I’ve heard some horror stories about what some of them did. And it’s embarrassing to me now to talk to veterans about the situation that we got ourselves in.”

AFGE joined 11 other unions in opposing the Restore VA Accountability Act.

The unions wrote in a letter that the bill “would undermine workers and undermine patient safety.”

VA leaders don’t support the VA Accountability Act, and say the legislation would only ensnare the department in more lengthy legal challenges.

Aaron Robison, senior attorney-advisor with VA’s Office of General Counsel, said VA going back to a lower standard of evidence and fewer due process protections would bring the VA back into litigation “with really no guarantee the VA will prevail in those legal challenges.”

“The department has legal concerns — significant legal concerns — about how those would play out in court,” Robison said.

Therit said the VA is concerned that the Restore Accountability Act “will continue to be the subject of extensive litigation and constitutional challenges.”

“We strongly caution against enacting requirements that could create unintended outcomes in the future,” she added.

Therit said the VA is still making use of other authorities in the 2017 VA Accountability Act. That includes sections that allow it to take disciplinary action against senior executives, as well as recoup bonuses and other financial awards.

“There are many provisions of the 2017 Accountability Act that we are using,” she said.

Even without its fast-track disciplinary authority, Therit said the VA over the past two years has issued about 4,000 adverse actions each year. Those include firings, demotions and suspensions lasting more than 14 days.

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