The measure was introduced in the House by Rep. Mike Bost, R-Ill., and in the Senate by Sen. Jerry Moran, R-Kan., who serve as chairman and ranking member of their respective VA committees, and with the support of Sen. Joe Manchin, D-W.Va.

The measure was introduced in the House by Rep. Mike Bost, R-Ill., and in the Senate by Sen. Jerry Moran, R-Kan., who serve as chairman and ranking member of their respective VA committees, and with the support of Sen. Joe Manchin, D-W.Va. John Moore/Getty Images

Republican leaders take another shot at easing the firing process for VA workers

Previous efforts to speed up firing at VA have fallen flat, but lawmakers are launching a new, bipartisan effort.

After a series of setbacks in court and various oversight entities rendered a marquee civil service reform at the Veterans Affairs Department largely unenforceable, key lawmakers are renewing a bipartisan push to once again make it easier to fire employees at the agency. 

The Restore VA Accountability Act (H.R. 4278) would allow the department’s secretary to remove or demote any employees and, for supervisors, eliminate their ability to launch an appeal to the Merit Systems Protection Board, the independent agency designed to hear such cases. The measure, introduced in the House by Rep. Mike Bost, R-Ill., and in the Senate by Sen. Jerry Moran, R-Kan., who serve as chairman and ranking member of their respective VA committees, and with the support of Sen. Joe Manchin, D-W.Va., would seek to put into statute provisions that would better protect the bill from the constitutional and other pitfalls that ended enforcement of similar reforms in the past. 

VA Secretary Denis McDonough ended the implementation of disciplinary provisions included in the 2017 VA Accountability and Whistleblower Protection Act, citing its repeated defeats in court and elsewhere. The decision marked the second time in the last decade that Congress tried and failed to speed up firing at VA. In 2016, the department announced it would no longer use a 2014 law aimed at making it easier to fire career senior executives after it similarly suffered a series of legal setbacks.

Bost said his bill would reinstate Congress’ intent to “quickly and fairly discipline bad employees” and predicted it would survive inevitable challenges by bringing accountability “back to VA for good.” 

“Administrative courts have issued decisions that ignore Congress’s intent by limiting the law’s applicability, leading VA to declare the 2017 law unusable,” Bost said. “As it stands today, the secretary’s hands are tied and failing employees continue to be employed at VA. That is unacceptable to me.” 

Under the new legislation, VA would set up an internal grievance process for supervisors who wish to appeal a disciplinary action. Once an employee filed a grievance, the department would have 21 days to make a final determination. The employee could then take their case for judicial review, but not to MSPB. 

The measure would reinstate a lower threshold for VA and judges reviewing cases to uphold firings and would block courts from challenging the penalty the department imposed. Federal courts previously ruled under the 2017 law that VA must use a higher evidentiary standard to prove its case against employees and that it could not apply the law retroactively. They also ruled that judges can review whether VA’s selected punishment fit an employee’s alleged misbehavior. A key part of that earlier law as drafted by Congress also sought to force the court to accept VA’s selected degree of discipline so long as the evidence supported that misconduct occurred.

The new bill would block VA from requiring an employee receive a performance improvement plan before being fired. The Federal Labor Relations Authority found VA violated its collective bargaining agreement with the American Federation of Government Employees when it eliminated “performance improvement plans” from the pre-disciplinary process as part of its enforcement of the 2017 law, which President Trump repeatedly hailed as a signature legislative accomplishment and a key piece of civil service reform. The decision required VA to reinstate all employees fired without first being provided such a plan. Lawmakers made clear in the new bill that its reforms would supersede any agreement VA had negotiated with a union. 

Most recently, MSPB ruled the law did not apply to employees in “hybrid” Title 38 positions, such as audiologists, social workers, nurse assistants, physical therapists and others. The new bill would also seek to close that gap. VA said after the MSPB ruling that as a result of the various decisions there were “few remaining practical differences” between the new system and the one in place before it, so it would no longer utilize the reformed process. 

McDonough said earlier this year the law was only creating additional obstacles as VA attempted to discipline its malfeasant or poorly performing employees.

“To be honest,” he said, the law, “wasn’t really helping us necessarily manage our workforce as much as it was getting us in front of federal judges and in front of administrative bodies. So we just want to make sure we are exercising the authorities we do have and we can exercise those transparently.”

Manchin said the bill would allow VA leaders to “break through the bureaucracy” while protecting whistleblowers. Sen. Marco Rubio, R-Fla., who helped spearhead the reform efforts in 2017 and cosponsored the updated version, blamed the Biden administration for failing to adequately support the resulting legislation in court. The American Legion also threw its support behind the new legislative effort. 

“Our veterans deserve to know that poor performance will not be tolerated at the Department of Veterans Affairs,” said Jim Troiola, the legion’s national commander. 

Despite lawmakers’ concerns that his hands were tied, McDonough earlier this year stressed that VA would be able to hold its employees accountable without additional legislation. 

“In all cases we do think we do think we have what we need to manage our authorities outside” the 2017 law, he said.

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.