At-Will Employment at VA Not the Way to Go


By:  Rep. Mark Takano

In Congress, we can all agree that greater accountability is sorely needed within the Department of Veterans Affairs. We are all outraged that VA employees whose misconduct has harmed veterans have remained in their jobs. This lack of accountability has overshadowed the excellent work of the vast majority of VA employees, over a third of them veterans themselves, whose genuine caring and tireless efforts honor veterans’ service to our nation.

In response to this lack of accountability, Republican lawmakers have proposed legislation to turn VA employees, over a third of them veterans, into at-will employees. Under the terms of this bill, H.R. 1994, any VA employee, from a janitor to a counselor to a doctor, could be fired immediately for any reason – without requiring the VA to explain the reasons for firing or provide any notice to that employee. While I share these lawmakers’ outrage and frustration at the VA’s seeming inability to fire or discipline employees who clearly should lose their jobs, I believe it is wrong and at odds with our principles to assume VA employees are guilty until proven innocent.  I believe that it is wrong to attack VA employees because VA senior management cannot use the tools that are currently in place to achieve a level of accountability that we all demand.

Our Constitution guarantees that we cannot be deprived of life, liberty, or property without due process of law. We are all innocent until proven guilty. Our veterans were willing to lay down their lives to defend this principle. And as lawmakers, we do not have the power to revoke this Constitutional principle of fairness and due process for a select group of people—no matter how outraged we may feel.

The Supreme Court has long held that federal employees must be given due process before losing their job, because that job constitutes a property right. A federal employee may not be fired without cause, and must be given an opportunity to respond to charges before being fired. This does not mean that an employee should be given months or years to respond to allegations. Courts have found that when an employee’s behavior threatens the public welfare, post-termination process is appropriate. And VA can currently fire poor performers with as little as seven days’ notice on the front end. It is not our laws that have prevented the VA from firing bad employees, but the VA’s failure to hold employees accountable under its existing authorities.

There are important reasons for requiring that federal employees may only be fired for cause. Without this constitutional protection, our federal workforce would return to the failed 19th Century system, when individuals were hired and fired based upon the amount of money they gave to a political party or an elected official, not based upon skills and competence to perform their jobs on behalf of veterans.

Civil service protections also shield our whistleblowers from being fired in retaliation, and our National Guardsmen and Reservists from losing their jobs when a deployment is inconvenient for the boss.

What’s more, removing protections from VA employees would single out the VA as a less-desirable workplace for new talent. The VA already has a hard enough time competing with private sector salaries for the most talented medical providers and experienced managers. Creating an at-will VA workplace would place VA a step below other federal agencies, resulting in more staffing shortages, lower morale, and ultimately inferior services for our veterans.

This is why I introduced H.R. 2999, the Fair VA Accountability Act. My bill increases accountability by allowing the VA to immediately suspend without pay any employee whose misconduct threatens veterans’ health and safety. It provides adequate post-termination notice to meet Constitutional requirements, allowing fired employees enough time to tell their side of the story. It caps paid administrative leave at 14 days, so employees are unable to sit at home and collect a paycheck while fighting a disciplinary action, and prevents VA officials from securing lucrative VA contracts for at least a year after leaving the agency. Finally, it shields our bold VA whistleblowers by protecting existing laws and requiring the VA to pay back-pay to any whistleblower unjustly fired for reporting wrongdoing.

My bill, the Fair VA Accountability Act, gives the VA additional tools to instill real accountability. It also protects the majority of the high-performing VA workforce from being fired at the whim of capricious or retaliatory managers. By affording employees the right to tell their side of the story – to have their day in court – this bill will ensure that bad employees who risk the health and safety of veterans and others will actually be fired. I am concerned that legislation such as bills proposed by my Republican friends could very well have the opposite of the result intended: bad employees could be shielded from removal because of the fundamental absence of any real fairness. My bill provides the VA with the tools it needs to remove bad employees immediately and protect the health and safety of veterans and others, and I believe that it does so in a manner which preserves important concepts of fair play for VA employees. These employees live in our communities and states; they are our friends and neighbors and sometimes our family members. Ensuring basic American notions of fairness is what my legislation, H.R. 2999 provides, and what H.R. 1994 frankly does not.