House bills would extend same VA removal authorities to Labor, Education secretaries

A few members of Congress want to make good on the president’s call to give every cabinet secretary the authority to discipline and remove their employees more quickly.

Rep. Lloyd Smucker (R-Pa.) has introduced the Labor Department Accountability Act, which would give the secretary expedited authority to suspend, involuntarily reassign, demote or remove employees and senior executives for misconduct or poor performance.

Rep. Francis Rooney (R-Fla.) introduced the similarly titled Education Department Accountability and Whistleblower Protection Act.

With a few omissions, both bills are strikingly similar to the VA Accountability and Whistleblower Protection Act, which Congress passed and the president signed with much fanfare last summer.

Smucker and Rooney first introduced both bills back in December, before President Donald Trump called on Congress in his most recent State of the Union address to “give every cabinet secretary … the authority to reward good workers — and to remove federal employees who undermine the public trust or fail the American people.”

Trump cited the success of the VA Accountability and Whistleblower Protection Act in his address last month.

But it’s unlikely that this legislation for Labor would pick up much traction, particularly in the Senate. Most other pieces of accountability legislation in recent years have failed without earning consideration in a Senate committee.

The VA Accountability and Whistleblower Protection Act, however, is the exception. It won bipartisan support only after Senate Democrats agreed the legislation struck the right balance and preserved some respect for the grievance process in collective bargaining agreements.

Both pieces of legislation would set similar disciplinary procedures for rank-and-file employees and senior executives at the Labor and Education Departments.

“Employees should have proper protections in place to report misconduct, and those at fault should not be receiving financial compensation in the form of bonuses,” Smucker said in a January statement. “These bills are a step towards helping end the bureaucratic status quo that for too long has resisted reforms aimed at improving the efficiency and effectiveness of our federal agencies.”

Both the Labor and Education legislation shortens the current timeline to 15 days for notifying the employee, giving the employee time to respond and issuing a final disciplinary decision.

Members of the Senior Executive Service could use an internal grievance process the Labor secretary or the Education Department’s newly established Office of Management would designate.

The total grievance process for executives of both agencies must take no longer than 21 days, both bills said.

Like the VA law, the legislation would eliminate the Merit Systems Protection Board as an appeal avenue for senior executives at Education and Labor, though SES members can continue to take their appeals to court.

Rank-and-file employees at both agencies could continue to use MSPB to appeal their disciplinary actions, but administrative judges must make a decision within 180 days.

Like the VA law, both Education and Labor bills would lower the burden of proof that agencies must use to demonstrate misconduct. Typically, agencies must prove that it’s more likely than not that an employee committed some misconduct. Under the “substantial evidence” standard, agencies must show that an employee misbehaved using “more than a mere scintilla” of evidence.

Employees who win their appeals would be entitled to back pay for the time it took for MSPB or the U.S. Court of Appeals for the Federal Circuit to make a decision. Otherwise, employees will not receive pay, awards, bonuses, student loan repayments or other special payments, incentives or benefits while under investigation, the legislation said.

Both bills also include other familiar provisions in the name of accountability. For example, both the Education and Labor secretaries could order employees to repay a bonus or performance award if the agency determines it wouldn’t have handed out that award if it discovers poor performance or misconduct later.

In a letter to House members, the American Federation of Government Employees called the new Labor bill “unnecessary in the pursuit of government accountability” and “bad policy.”

“The DOL Accountability Act is a direct attack on these federal workers for no reason other than the crusade of a minority in Congress to deprive any federal workers of workplace fairness,” AFGE Legislative Director Thomas Kahn wrote.

Both the Education and Labor accountability bills differ in some ways from the VA act, particularly as they relate to whistleblower protection.

The Education Department bill would create a new office, which would advise the agency’s secretary on accountability issues, whistleblower retaliation and “such matters as the secretary considers similar and affect public trust at the department,” Rooney’s bill said.

This office would be in charge of receiving and referring whistleblower disclosures. It would also prepare annual reports to Congress on the office’s activities.

The creation of this office at Education appears to resemble the Office of Accountability and Whistleblower Protection at the Veterans Affairs Department, which the VA act codified and set into law.

Both the Labor and Education bills include whistleblower training requirements for agency supervisors, though the latter goes into more detail.

The Education legislation specifically mentions the inclusion of criteria in supervisors’ performance plans, which “include principles for the protection of whistleblowers, such as the degree to which supervisory employees respond constructively when employees of the department report concerns, take responsible action to resolve such concerns and foster an environment in which employees of the department feel comfortable reporting concerns to supervisory employees or to the appropriate authorities,” Rooney’s bill said.

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