By William Wiley, December 13, 2017

Thirty-nine years ago this month, all of us employment law practitioners began reading and re-reading the brand new “Civil Service Reform Act of 1978.” So much to know (and not know). New rules, new flexibilities; every agency developed an informal brain trust to figure out how this new law worked and what strategies to employ to take advantage of it.

Our friends at DVA are in the same situation right now. Last summer, Congress created new procedures that DVA could use in lieu of the traditional 5 USC Chapter 75 procedures to hold employees accountable for conduct and performance. Here at FELTG, we’ve predicted that these new procedures are effectively a test run and will be employed throughout the civil service if they prove to be successful at increasing DVA employee accountability.

Three of the major changes to the accountability procedures that come from the new DVA law are:

  • A shortened notice period between the day an employee’s removal is proposed and the day the employee can be removed from the payroll (from about four weeks to about three weeks),
  • A lowered burden of proof for misconduct removals (from a preponderance of the evidence (51%) to substantial evidence (~40%), and
  • A prohibition on a judge or arbitrator from reducing a penalty (no mitigation, no need to justify a penalty using the Douglas Factors).

Recently, we got an insightful question from a DVA reader who had read the law more closely than we had here at FELTG:

Good afternoon, I’m curious to hear your thoughts as to any benefits VA might have from issuing a 14-day suspension under 752 as opposed to a 15-day under 714.  There’s MSPB jurisdiction but no penalty mitigation and a lower burden of proof.

We weren’t really sure what the question was all about until we re-read the law. Guess what? These new 38 USC 714 procedures that allow for a lower burden of proof and no-penalty-mitigation apply to removals, demotions, and suspensions IF THE SUSPENSION IS 15 DAYS OR MORE. That means that for a shorter suspension, DVA has to use the old 5 USC Chapter 75 procedures that require a preponderance of evidence and penalty-justification.

Wow. How crazy is that? If our interpretation is correct, that it is easier to defend a long suspension than it is a short suspension, that throws DVA into a weird strategy position. Our advice would be something like this:

  • As a general rule, we can’t find any real benefit to a suspension and we find a number of drawbacks. Therefore, we recommend doing away with suspensions altogether and offering the employee a Reprimand in Lieu of a Suspension for a second or more serious offense. (Attend our January 23 webinar on Discipline Alternatives: Thinking Outside the Adverse Action for more detail on why suspensions really don’t work.)
  • If DVA wants to suspend in spite of there being no evidence that a suspension corrects misconduct, for non-bargaining unit employees, the shorter 14-day suspension is still the better option as it can be challenged only within DVA, thus avoiding an MSPB hearing.
  • For bargaining unit employees, we recommend avoiding short suspensions and using the 38 USC 714 option. We don’t want an arbitrator to apply Chapter 75 mitigation and preponderance to a suspension if we can help it.

These are fascinating times in government employment. As we’ve said often here at FELTG, Congress’s piecemeal approach to increasing accountability via segmented legislative action is going to create this sort of nonsensical anomaly. DVA, best of luck in figuring out how to use all of this new flexibility. The rest of the civil service can hardly wait to see how it turns out for you. [email protected]

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