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MSPB chief reviews challenging year for agency

Last year was difficult year for the Merit Systems Protection Board (MSPB). The Board, which is responsible for hearing appeals from administrative law judge decisions related to federal employee disciplinary, adverse actions and other employment law cases.

The MSPB began the year swamped with 30,000 furlough cases caused by the sequestration in 2013. And it had to deal with new, rapid appeals process for senior executive service (SES), which has already demonstrated the shortcomings of the new process.

Problems at the VA continue, pt.2

Disciplining management is always problematic. Senior managers may manipulate structures they oversee to insulate themselves from direct allegation of misconduct or wrongdoing. The VA has been perceived to be particularly poor in punishing misconduct among its senior management, which is in part why Congress enacted the draconian new dismissal procedure in the wake of the Phoenix VA hospital scheduling scandal.

This new law could allow very rapid terminations of senior managers, and shortens their appeal rights, but given the newness of the law, it is possible it may be challenged at some point as a violation of their due process rights.

Problems at the VA continue, pt.1

Retaliation claims and allegations of misconduct by supervisors and managers are always a difficult situation for any employees. Their managers should be above reproach, since they are not paid to perform the essential function of the department or agency, but to see that those functions are effectively executed.

When managers fail to properly execute their duties, as they apparently did at the Phoenix VA hospital, bad things can happen for the veterans needing healthcare services from the facility. 

Some former troubled IRS employees rehired

Hiring employees is a complex task. A manager must review the candidate's qualifications and the skills needed for the position. They then must look at whether they are a veteran or have other factors that could give them a preference. And the manager must possess good judgment.

A recent report from the Treasury Inspector General for Tax Administration (TIGTA) found that the Internal Revenue Service hired some individuals who had been previously employed by the IRS and had performance or conduct issues. 

There is no confusion -- lack of candor is a serious charge

Watergate has been the most famous political scandal of the last 50 years, and the only one that resulted in the resignation of the president. The teaching lesion of Watergate has been that it was the lying and the cover-up that ended the Nixon presidency.

And that should serve as an exemplar, warning all federal employees that because they owe a duty of candor to their agency, when they make mistakes or violate a standard, the lying about the incident can be more serious than the underlying offense.

Whistleblower gets to return to the MSPB

Legal disputes are often a game of inches. People often misunderstand how court opinions read, and fail to grasp that when a court upholds or overturns a lower court ruling, it may not be ruling on the substantive issue that caused the lawsuit in the first place, but instead, may only be ruling on one procedural element of the overall case.

Such was the recent victory in the U.S. Supreme Court for a former air marshal who was fired by the department of Homeland Security (DHS). The Court did not order that he be reinstated to his position as air marshal, which is his goal. But what it did is an important and essential step in his reaching that reinstatement.

Title VII allows federal employees more time to sue in court

One of the most important elements of a lawsuit that you should be aware of, is the application of a statute of limitations to your claim. Statutes of limitations are, as the name suggests, the limitations applied to causes of action, i.e., the right to sue on some grievance. They vary in length, and once they "run," or have expired, they work as an absolute ban on filing a lawsuit.

For federal workers there are additional rules that they must comply with when suing the federal government for a Title VII discrimination claim. A worker is required to file an administrative action first with their agency or the Equal Employment Opportunity Commission (EEOC) before they attempt to sue in a federal court.

Federal hiring may not always be "fair and open"

Everyone is in favor "fair and open" hiring procedures. It is especially important for entities like the federal government, for one, because violating the Civil Service laws is illegal, and secondly, we want federal jobs to be open for all qualified citizens and the federal government should embody the spirit of all of the employment laws that have been designed to promote fairness in the workplace.

A report from the Merit Systems Protection Board (MSPB) suggests that in some cases, hiring authorities put in place to promote some groups, like veterans for jobs in the federal workplace, may wind up inhibiting that competition. Manager's behavior may also affect the process, by limiting the period a posting is open, or reopening a posting to allow a preferred candidate to apply.

Two GSA commissioners reinstated by MSPB

If you have been disciplined or subjected to an investigation relating to a possible adverse job action, you will quickly realize that one of the most important factors in the outcome of your case is the evidence presented.

While the administrative proceedings that make up most federal employment disputes are governed by different rules of evidence from criminal cases, the evidence is just a vital. Two cases arising out of the General Services Administration's (GSA) Las Vegas conference scandal demonstrate how important evidence or lack of evidence can be to whether a federal employee is separated or reinstated with back pay.

The VA's can of worms

The scandal involving the Department of Veterans Affairs (VA) hospital scheduling delays is problematic in many ways. It apparently may have delayed treatment of veterans by keeping some portions of those waiting "off the books," apparently so that the performance of the hospitals would look more favorable.

It led to Congress changing the law controlling how senior officials within the VA can be disciplined and terminated. The law itself has been called into question, as it forces the official to appeal their notice of removal within seven days and only provides the Merit Systems Protection Board (MSPB) with 21 days to render a decision. 

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