What Was This Lawsuit About?
In September 2017, the American Federation of Government Employees (AFGE) National VA Council (NVAC) filed a National Grievance against Veteran Affairs (VA) for failing to provide performance improvement plans (PIP) to AFGE bargaining unit employees (BUE) before taking performance-based adverse action. Providing PIPs is necessary under Article 27, Section 10 of the 2011 Master Agreement.
VA PIP Settlement Timeline:
- August 23, 2018 – Arbitrator Jerome H. Ross issued an award (the Ross Award) sustaining the National Grievance. In this award, he found that the VA did violate the 2011 Master Agreement as mentioned above.
- September 2018 – VA filed exceptions and a motion to reconsider with the Federal Labor Relations Authority (FLRA), which the FLRA denied.
- November 16, 2020 – The Ross Award was finalized, but VA failed to initiate compliance.
- May 17, 2021 – The Union filed an unfair labor practice charge with the FLRA, seeking enforcement of the Ross Award. Afterward, VA took steps to implement the Ross Award, offering reinstatement and/or make-whole relief.
- July 5, 2022 – A Settlement Agreement was executed to resolve disputes concerning VA’s compliance with the Ross Award. This settlement was reached with the assistance of the FLRA Collaboration and Dispute Resolution Office.
What Was the Settlement?
Under the settlement, and as was required by the Ross Award, VA is required to “provide make-whole relief and reinstatement, if applicable, to AFGE BUEs who were wrongfully disciplined under Section 714 without first receiving a PIP between June 23, 2017 and July 5, 2022.”
Relief is also to be provided to employees who resigned, retired, or executed a last chance agreement to avoid performance-based discipline under Section 714 between November 16, 2020 and July 5, 2022. Further, relief will also be extended to those who executed an individual settlement agreement between November 16, 2020 and July 5, 2022 and who also received performance-based discipline under Section 714.
The VA PIP settlement also outlines:
- Employees eligible for relief
- The types of relief those eligible can receive
- How VA will notify and provide relief to those employees
To review the full VA settlement agreement, as well as eligibility charts, visit the AFGE site here.
Are You Eligible for Relief? Contact Us For Help
According to the settlement agreement, VA will notify you through the mail if you are eligible for relief, providing you with important information on the actions you must take to receive relief. Notifications were scheduled to be sent out in mid-July 2022.
If you’ve received a notification and need guidance, or if you believe you were eligible for relief and did not receive notification, reach out to Pines Federal. We are familiar with this case and have extensive experience representing federal employees in adverse action cases.
Want more information? Below we provide a review of federal PIP requirements as outlined by the 2011 Master Agreement.
PIP Requirements
Under the aforementioned Master Agreement, when a supervisor determines that an employee is not meeting their required performance standards, the supervisor is required to “identify the specific, performance-related problems.” They are then required to develop a written PIP.
The PIP should be developed in consultation with the employee and a local union representative. The goal of the PIP is to help return the employee to satisfactory performance levels.
The PIP should identify:
- The employee’s specific performance problems
- The successful level of performance required of the employee
- The action(s) the employee must take to improve their performance to the successful level identified
- The methods used to measure the employee’s performance
- Any provisions for counseling, training, or other assistance that is appropriate for the situation
- Any additional instructions, including the assignment of a mentor or additional training when appropriate
Furthermore, the PIP should be designed for the specific needs of the employee in question. The PIP must also provide the employee with at least 90 calendar days (or another time frame deemed reasonable and which is not less than 90 days) to resolve the performance-related problem(s) identified in the PIP.
According to the Master Agreement, regular communication between the employee and supervisor is vital during the PIP period. As such, Article 27, Section 10C identifies that the supervisor should meet with the employee biweekly, providing feedback on the progress made during the PIP period.
If the supervisor determines that the employee’s performance has returned to the fully successful level identified, the PIP may be terminated. The supervisor may then evaluate the employee as Fully Successful or higher.