By bakdc / Shutterstock.com

VA Appeals Ruling That Could Force It to Rehire Fired Workers

Trump administration looks to reverse arbitrator's ruling; union will have until Oct. 24 to respond to VA's challenge.

The Trump administration is challenging an arbitrator’s decision that could force the Veterans Affairs Department to rehire many recently fired employees and deal a significant blow to one of President Trump’s signature legislative achievements.

VA has filed exceptions to the Federal Labor Relations Authority to a third-party ruling that found the department had run afoul of its collective bargaining agreement in enforcing provisions of the 2017 VA Accountability and Whistleblower Protection Act that made it easier to fire employees. The arbitrator’s decision would impact a portion of the employees represented by the American Federation of Government Employees who have faced an adverse action under the new authorities granted by the law. Trump, VA and lawmakers in both parties have heralded the law as a significant step in cracking down on misbehaving and poorly performing employees, but its enforcement has been mired in controversy since its passage.

Curt Cashour, a VA spokesman, said the department brought its appeal to the FLRA last week. While the case is under review by FLRA, Cashour said, the arbitrator’s award is “not final or binding.”

Cheston McGuire, an AFGE spokesman, said the union must respond to VA’s challenge by Oct. 24. It’s unclear how long FLRA will take to decide on the case, but McGuire expects it could take up to one year.

AFGE brought the case for mediation after VA issued a series of memoranda that said VA was no longer required to give employees 90 days to improve and performance improvement plans would not be used. The union said that violated specific clauses in its collective bargaining agreement requiring those steps for employees identified for poor performance.

VA argued the memos do not affect performance improvement plans, and even if they did, the accountability law supersedes the requirements of the collective bargaining agreement.

The arbitrator rejected that argument, saying the memos did affect performance improvement plans and the accountability law speaks only to the hastened timeline once the department decides to discipline an employee. It does not address what VA must do prior to firing someone, said Jerome Ross, the arbitrator, and therefore it cannot supersede the collective bargaining agreement. Ross noted that federal law requires that federal employees be afforded a “reasonable opportunity to demonstrate acceptable performance.”

The arbitrator ruled that VA must resume compliance with its collective bargaining agreement, rescind any adverse action against AFGE-represented employees who did not first receive a performance improvement plan, and reinstate them at the department, including back pay, restored leave and other benefits. VA would pay AFGE’s attorney fees if Ross’ ruling holds.

Public data posted by VA shows about 1,700 employees were fired outside of their probationary periods between the time the department issued the memos last August and July 2018. It is unclear how many of those employees were denied opportunities to improve their performance and are represented by AFGE. The union represents more than two-thirds of the department's 383,000 workers.

Trump frequently cites the success of the accountability law as one of his proudest accomplishments as president, saying it has enabled the department to get rid of poorly behaving employees.

“That was something that was very important to me,” Trump said last month. “There was no way you could hold them accountable. They could be sadists. You had some of them, too. It doesn't sound nice. They could be thieves. They could rob you blind. They could steal money, and you couldn't do anything about it. Now you can do whatever you want.”

Lawmakers have for months accused VA of flouting congressional intent in implementing the accountability law. Earlier this year, a group of senators wrote a letter voicing concerns specifically about the elimination of performance improvement plans and lack of progressive discipline. The senators said new policies have led to employees being fired for “missing deadlines or moving slowly after an injury,” even on first offenses. Such actions, they said, “are not the types of offenses that rise to the level of immediate termination,” an authority provided in the 2017 law.

“This is unacceptable and runs counter to congressional intent and your previous comments,” the lawmakers said. They noted then-VA Secretary David Shulkin had previously testified, “Every good manager works with their employees to make them better, to give them feedback,” a practice which the new policies do not allow.

VA has also faced criticism for disproportionately firing low-level employees, such as housekeeping staff. A June letter asked VA’s inspector general to investigate the law’s enforcement, and while no Republican signed onto either letter, Republican leaders on the department’s oversight committees have voiced concerns. The IG is currently probing the law’s enforcement.

The department has stood by its actions.

“VA makes absolutely no apology for holding employees accountable when circumstances warrant," Cashour said in June. "If former employees feel their removal from federal employment is improper, they have a number of appeal options under federal law."

At a House hearing on the law in June, then-acting VA Secretary Peter O’Rourke defended the department’s policies, but acknowledged it still had work to do to ensure consistent enforcement.

“Right now we’re dealing with the first year of implementation,” he said. “New rules, everyone’s trying to figure that part of it out.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.