VA Accountability Law Makes It Easier to Discipline Employees for Misconduct

Jennifer Duke

September 8, 2017

Employees are still entitled to a Notice of Proposed Discipline and a chance to respond and have their response considered before the VA makes a decision regarding the proposed discipline. However, the timeline has been drastically reduced, as has the amount of evidence the VA needs to prove misconduct.

These changes only apply to major adverse actions, which include suspensions of 14 days or more, demotions, and removals.

The major changes are as follows:

The Standard of Proof the VA must meet to discipline a VA employee for misconduct has been reduced from preponderance of the evidence to only substantial evidence. While the VA used to need to meet a preponderance of the evidence standard, or a "more likely than not" standard, the VA now only needs to show that there is substantial evidence of the misconduct.
The time frame for receiving a notice of proposed action, responding, and receiving a decision has been reduced. With the new changes, the total time period for a notice to be given, an employee to respond, and a decision to be issued is now fifteen (15) business days. Seven (7) business days must be reserved for the employee to respond. Due to the strict time frame, the VA is generally unable to grant extensions of time for employees to respond.

A man in a blue suit standing in front of a large staircase fastens his blazer

Once a decision has been issued by the VA, an employee has only ten (10) business days to file an appeal with the Merit Systems Protection Board ("MSPB"). The old standard, and the standard applicable to non-VA federal employees, is 30 calendar days. This shorter time frame for VA employees requires employees to act much more quickly than in the past.
The final major change provides that the MSPB Administrative Judges are no longer permitted to mitigate a penalty imposed by the VA. The Judge may only uphold or overturn the VA's penalty.

While the true impact of these changes is difficult to determine, the shortened time frames for taking action if you are a VA employee facing a major adverse action leave little time to waste. The federal employment attorneys at Melville Johnson, P.C. are experienced and knowledgeable about the process and the changes that have been made. Call or message us today to discuss your situation and learn how we can assist you.

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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