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Fixing the VA by damaging employee due process rights

The new Veterans Affairs law passed by Congress and signed into law by the President has been praised as giving the new VA secretary the tools he will need to improve the agencies performance and allow it to recover from the healthcare scheduling scandal. It has also created a new precedent that must give all federal employees cause for concern.

Federal employees have traditionally had greater due process rights than most private sector employees because of the nature of their employer. The federal government has many political appointments, which could permit abuse and political pressure to be used to fire workers and fill their vacancies with political favors.

The civil service system was created to protect workers and the integrity of the system. The new VA law, while providing needed funding and other assistance to fix some of the problems in the VA, also damages employee rights within the Senior Executive Service (SES).

This law provides seven days to appeal a job termination, more troublingly, the administrative law judges of the Merit Systems Protection Board (MSPB), who would hear the appeal, have a mere 21 days after that to issue a ruling.

If they fail to complete their ruling in that time, the termination becomes final, and the employee has no right of appeal to the full Merit Systems Protection Board, nor to any federal court. The administrative law judge would have to explain why they did not issue a ruling on time to Congress, but that would be of little comfort to the terminated employee.

The destruction of real due process rights is shocking. Discovery in a case like this could take months, as documents must be identified and located, witnesses need to be found and deposed and to compress all of that into a seven-day period can only be designed to prevent an employee from presenting a viable defense.

While some elements of the appeal process could be streamlined, this new law simply steamrolls over any employee rights, and "fixes" one problem by creating a new one.

Source: Washington Post, "New VA law tackles agency problems, but also hurts employee rights," Joe Davidson, August 7, 2014

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