US federal employees wrongly fired under Trump-era accountability legislation to get compensation

By on 02/08/2023 | Updated on 02/08/2023
A photo of the Veterans Administration Building, headquarters of the United States Department of Veterans Affairs, in Washington DC. Photo: APK reproduced under Creative Commons

The US federal government’s Department of Veterans Affairs is to offer compensation to officials who were wrongly sacked under 2017 legislation intended to make it easier to remove officials.

The department sacked a number of officials under the provisions of the 2017 Department of Veterans Affairs Accountability and Whistleblower Protection Act, but was later found to have not offered officials performance improvement plans before their dismissal.

The offer of such plans is a requirement of the department’s collective bargaining agreement with the American Federation of Government Employees (AFGE), and the settlement resolves the adverse finding against the department from the Federal Labor Relations Authority over its failure to do so.

Read more: Republicans could politicise 50,000 civil service jobs, US academic warns

Under the agreement, staff removed from their roles will be either offered their jobs back or will receive compensation in lieu of being reinstated. However, employees that both the department and the union agree had been removed from their jobs for “grievous misconduct” will not be eligible to return to work.

According to the department, the total cost of settlement could amount to hundreds of millions of dollars, dependent on how many officials decide to return to their jobs.

VA secretary Denis McDonough, who heads the agency, said the agreement would allow both the department and employees to “focus on what matters most: delivering world-class care and benefits to veterans, their families, caregivers, and survivors”.

He added: “Union employees are the backbone of VA’s workforce, and we are proud to support them — today and every day in our shared mission to serve those who served.”

The department also announced it had reached a tentative agreement with the AFGE on a new master bargaining agreement. This new agreement will help VA’s dedicated public servants “continue delivering more care and more benefits to more veterans than ever before in our nation’s history”, it said, and will also help the department to better retain employees and hire staff more quickly.

Powers no longer used but Schedule F looms

The department is no longer using the authority granted under section 714 of the 2017 law, which gave the power to the secretary to “remove, demote, or suspend a covered individual who is an employee of the department if the secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension”. The department said that the legislation has been “rendered ineffective and unusable by years of litigation and adverse administrative and court decisions following its passage”, adding that it has the necessary authorities to manage its workforce and hold employees accountable for misconduct and poor performance.

These powers were separate from President Trump’s plans to move federal workers in policy-orientated roles from the government’s main federal pay scale (known as the General Schedule) to ‘Schedule F’, a new category under which the usual civil service protections would not apply. This would allow the administration to rid federal government of anyone thought to be actively working against its agenda. Although Trump was unable to move any officials into the category while he was in office, and the power has since been rescinded by his successor Joe Biden, both Trump and other senior Republicans running to be the party’s presidential nominee in next year’s election have pledged to reinstate the power.

Professor Donald Moynihan, McCourt chair of the McCourt School of Public Policy at Washington DC’s Georgetown University, told an event hosted by the Institute for Government think-tank that Schedule F would “certainly come back under a Republican president, even if that president is not Trump”, adding that the policy represents “a very large unexploded mine sitting in the field of good governance in America, where it’s going to matter not just to the quality of policy advice or implementation, but also to the security of democracy”.

Read more: Trump aides plan federal staff purge in event of 2024 re-election

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About Richard Johnstone

Richard Johnstone is the executive editor of Global Government Forum, where he helps to produce editorial analysis and insight for the title’s audience of public servants around the world. Before joining GGF, he spent nearly five years at UK-based title Civil Service World, latterly as acting editor, and has worked in public policy journalism throughout his career.

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