How the Trump Administration’s Implementation of a 2017 Law Resulted in Inappropriate Terminations
President Trump has made the purging of ineffective government employees a central priority for his administration. The 2017 Veterans Affairs Accountability and Whistleblower Protections Act is one legislative vehicle supporting that aim, a law that purportedly makes it easier for the department to terminate incompetent or underperforming employees. The White House has repeatedly referenced the law as a central accomplishment of Trump’s presidency. It is also a rare instance of recent bipartisan support, with lawmakers from both sides of the aisle celebrating its intention to cut through red tape and improve the VA.
The law’s implementation has proved controversial and quickly ran afoul of the American Federation of Government Employees. Below, we cover a timeline of the legislation’s messy history since passage and the resulting litigation, including a recent decision that represents a significant setback to the Trump administration.
How the Problem Has Evolved
The 2017 law was built on the premise that too many employees in the Veterans Affairs Department are ineffectual, lazy, or otherwise inadequate. This underperformance theoretically resulted in severe inefficiencies throughout the broader VA Department, making it unacceptably difficult for U.S. military veterans get help and obtain benefits.
The proposed solution was to dismantle parts of the bureaucracy that had allegedly calcified the VA Department’s workforce. Previously, the act of terminating an employee, even with cause, was a fairly protracted affair. The 2017 Veterans Affairs Accountability and Whistleblower Protections Act sought to streamline the process and make the dismissal of personnel more expedient. It also sought to protect whistleblowers hoping to identify further inefficiencies, improper practices, or inappropriately behaving employees.
On their face, all of these goals made sense, leading to bipartisan support in Congress and the passage of the bill. President Trump signed the legislation into law and quickly began touting it as one of the early policy achievements of his term.
Unfortunately, the actual enaction of the law’s terms has triggered new or exacerbated existing institutional problems. Per an agency auditor, the whistleblower portion of the law ended up only punishing whistleblowers instead of aiding them. Their identities were often not protected in the course of investigations, leading to retaliatory actions and questions of conflicts of interest. Others within the VA attested that the implementation of the broader 2017 law was creating a “culture of fear,” especially as only lower-ranking workers appeared to be targeted by the enhanced measures. It also remains unclear if the law’s new tools actually led to more terminations, with public data clashing with internal VA numbers.
It is fair to say that the years following the law’s passage have been rocky. However, problems surrounding the legislation’s central tenet would only grow more strained.
The Issue of Retroactivity
One point of contention with the implementation of the 2017 law was whether its new rules applied only going forward or retroactively. Earlier in 2020, a federal judge rejected the idea that the law could apply retroactively and instituted a series of “safeguards” in its continued enaction.
This decision ripple effects for other areas of the law’s implementation. VA had declared that, under the new law, they would be eliminating 90-day grace periods for underperforming employees as well as performance improvement plans, or PIPs. The American Federation of Government Employees (AFGE) argued this violated VA’s collective bargaining agreement with the union, which specifically identifies these measures as mandatory steps before an employee can be dismissed.
The conflict led to a hearing before the Federal Labor Relations Authority (FLRA). The VA insisted that the contents of the 2017 law supplanted any language in the union agreement despite the recent ruling that the legislation did not apply retroactively.
Results of the Hearing
The FLRA ruled in favor of the arbitrator, deciding that VA had erred in its implementation of the law. They felt that grace periods and PIPs are both meant to be issued prior to the rendering of any punishment to an employee, including dismissal; because the 2017 law only permits the expediting of the punishment itself, it does not give the VA the authority to unilaterally eliminate the relief measures in violation of a union contract.
Following its decision, the FLRA ordered that VA:
- Must resume compliance with its collective bargaining agreement with AFGE, including the resuming of grace periods and PIPs prior to employee terminations
- Must reverse any unfavorable actions levied against employees who did not receive the opportunity for a PIP, consistent with their collective bargaining agreement
- Must reinstate the employment of any employee dismissed despite not receiving their contracted grace period or PIP, including restoration of benefits, back pay, and paid leave
VA has the ability to appeal the decision in federal court but is still deciding on whether to do so. The complaints that led to the arbitration originally stemmed from the Veterans Benefits Administration, AFGE has stated they believe that the scope of the ruling will apply to the entirety of the VA.
This decision represents a substantial victory for government employees and their unions. A new law was unable to retroactively eliminate protections from a collective bargaining agreement. Workers who were fired without due process will now enjoy full reinstatement of employment and benefits.
We Can Help Protect Your Rights
If you believe you were removed without proper due process and deserve to be reinstated, do not wait to reach out to our team. We are ready to assist all employees that have been negatively impacted by the implementation of the new law and can vigorously work to restore your position, pay, and benefits.
Our attorneys at Pines Federal have spent the last 20 years aggressively defending the rights of employees of federal agencies. We work exclusively in this practice area and have a full knowledge of how to protect and fight for your interests. Our team has over 50 years of combined legal experience and are committed to doing whatever it takes to helping our clients. We have handled many cases involving Veterans Affairs and are well-versed in the implications of changing laws and court decisions, including developments stemming from the controversial 2017 Veterans Affairs Accountability and Whistleblower Protections Act.
If you have been impacted by adverse actions as an employee of VA, call (888) 898-9902 or contact us online to schedule a consultation.