Ever since the VA Accountability and Whistleblower Protection Act officially became law, the Veterans Affairs Department has seen a spike in direct firings, probationary removals, and lawsuits against the agency. It’s also indirectly led to fewer settlements.
And while some say the trend had already begun prior to its signing, the latest numbers have been enough to turn the heads of those who serve within the administration (and to start a conversation with those outside of it).
In 2016, the VA discharged 2,001 employees. In 2017, another 2,537 employees were released. Many of these dismissals are employees who didn’t make it through their one-year probationary period. Both then and now, the majority of dismissals were those who served in lower level positions (e.g., food service, custodial, etc.), but the numbers have started to shift toward more GS-11s and GS-12s.
Unsurprisingly, the uptick in firings has led to an increase in appeals. A lawyer at the Federal Practice Group stated that their company has been inundated with VA removal cases.
Settlements on the Decline
While appeals may be on the rise, settlements are on the decline. When David Shulkin served as VA secretary, he enacted a rule that required senior approval of employee settlements of $5,000 or more. Between the red tape and the pushback, attorneys are seeing more and more cases funded out of the pockets of the defendants.
Even for clear open and shut cases where the VA administration was clearly at fault, the delays have been epic. Attorneys are filing fee petitions that are easily swallowed up in the mix. And while this may benefit the department in the short-term, the current culture is not sustainable.
Many federal employees have also been alarmed by the ramifications of the new law and have openly condemned extending the regulations to cabinet secretaries (a proposal that has been made several times over).
The president of the Senior Executives Association, Bill Valdez, has stated that he would prefer for Congress to work with the leaders they already have rather than increasing the department’s turnover.
Evidence and Attitudes
One of the biggest objectives of the VA Accountability and Whistleblower Protection Act was to lower the burden of proof the agency would need to justify its decision. Prior to the signing of the act, the law required defendants to present “a preponderance of evidence.” This has now been changed to “substantial evidence,” theoretically giving the agency more leeway to argue their case.
Some people believe that this new act clarified the tone of the action rather than changed the department’s direction. Supervisors already had plenty of power to make decisions but were hesitant to make moves because they were afraid of the response from their superiors.
In 2016, a full 80% of supervisors at the VA stated that the overall culture was the primary reason why they would hesitate to fire an employee for insubordination or misconduct. And only half said they were confident when making their final decision to dismiss.
In 2018, the language remains vague. Around 60% of managers openly admitted that the disciplinary process was still something of a mystery to them. Instead of attempting to understand the sheer weight of the complicated jargon, 84% of decision-makers have opted for the famous ‘beyond a reasonable doubt’ standard of the courts.
Getting the Answers
If you ask a department manager, an HR specialist, and a senior director the same question at the VA about their firing guidelines, it’s likely you’ll get three different answers. Considering the law just recently went into effect, the protocol is still unclear. Supervisors at the VA may not know who to contact, what to say, and what evidence they really need to support their case.
A supervisor may feel strongly in their decision to let an employee go, but their manager may have a very different opinion on the matter. The confusion about what qualifies as ‘substantial’ is severe enough that federal employees need to be smart about how they protect themselves against false accusations.
After the VA suffered through a scandal with its wait times for veterans to receive healthcare services, there’s been a rallying cry to cut through the bureaucracy and paperwork. But new laws also bring shifts in policy and procedure, which isn’t always easy to navigate when a manager already has a full to-do list.
Whatever your position within the VA, it’s likely that you’ve experienced the stress of navigating the workplace based on this law at one point or another. You may have felt the threat of a false or exaggerated accusation against you from a co-worker or supervisor, or felt nervous because you were unsure if something you did while working was actually acceptable. Or maybe you are a supervisor yourself, and worried about the repercussions that may come to you if you take disciplinary action against an employee — deserving or not.
The best course of action, besides educating yourself on all the laws and regulations of your agency, is to ensure you have the right insurance protection if any misfortune does arise. In the case of an allegation against you in the workplace, Starr Wright USA provides federal employees the liability insurance they need, that includes payment for legal defense costs for covered losses, subject to the terms of the policy. As laws continue to shift according to the political climate of the moment, it’s the policy you need to sustain your career.
Article sponsored by Starr Wright USA.
Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. For more information, visit WrightUSA.com. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc.