Under new accountability act, VA employees fear one mistake will cost them their jobs

Employees say the Veterans Affairs Department's interpretation of the Accountability and Whistleblower Protection Act doesn't give them enough time to improve p...

For the Department of Veterans Affairs, it’s always been all about the numbers.

When asked to meet unattainable standards, the VA Medical Center in Phoenix, Arizona, struggled to fill  appointments and meet the demand from veterans.

It was the bilked numbers in Phoenix that prompted Congress to examine VA’s firing practices and empowered the department’s secretaries — both past and present — to request authority to fire employees more quickly and more easily hold them accountable.

And after several years of debate, the department — and the president — finally got their wish in the VA Accountability and Whistleblower Protection Act.

Since its June passage, the department has been quick to point to its success, and President Donald Trump touted the law in his most recent State of the Union address.

“My administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve,” Trump said.

He called on Congress to empower every cabinet secretary to “remove federal employees who undermine the public trust or fail the American people.”

But the agency’s employees say more than three years after the Phoenix scandal, VA management has the same penchant for the same numbers that got them into trouble in the first place. They continue to prize those goals over their employees’ well being, many of whom are veterans themselves. The new performance standards don’t give them enough time to improve, employees added.

One mistake, they say, may cost them their jobs.

According to a November 2017 memo from VA Deputy Undersecretary for Field Operations Willie Clark, which Federal News Radio obtained, VBA employees are entitled to one opportunity to correct a performance deficiency each year.

-anonymous survey comment from a VA employee

One VBA employee in Milwaukee, Wisconsin, offered to accept a demotion to a lower General Schedule level — and an $11,000 pay cut — rather than risk removal.

The employee, who requested anonymity to discuss the situation more freely, has been working for the agency for 10 years. Managers offered fewer opportunities to do work that generated more points toward a performance rating, the employee said.

“I felt like I was being targeted,” the employee said in an interview with Federal News Radio.

For another employee in Philadelphia, her 28-year career at VBA may come to an end after failing a performance rating by less than one point, said Jim Rihel, a VBA rating specialist and local representative for the American Federation of Government Employees in Philadelphia.

“Everybody is afraid, scared,” the Milwaukee employee said. “The pay is pretty good, but people are very afraid for their jobs. They’re afraid to take action. Everybody is so worried about the repercussions, it’s really hard to do the right thing sometimes.”

-anonymous survey comment from a VA employee

Other employees say they feel the same way, according to comments compiled from VA’s 2017 All Employee Survey.

A Feb. 1 email from VBA Chief of Staff Michael Frueh, which Federal News Radio obtained, contains several reactions that “broadly represent” more than 87,000 survey comments from VA employees.

“VA as a whole no longer cares about employees,” one comment read. “We are a numbers oriented system [that doesn’t] care about how hard employees work or the stress that is put on them.”

According to Frueh’s email, VA’s overall employee engagement fell in 2017, and he noticed “significant declines” in employees’ attitudes toward the workplace and leaders.

“I am burned out along with everyone else I have talked to,” another employee wrote. “We cannot make these unattainable standards. Most of us feel like we are being set up to fail so that eventually we can be fired as ‘bad’ employees in the next few years and our jobs can be given to private contractors. I, along with many other employees, are currently working on our resumes because we don’t want to be blindsided. Sad for the VA, because you will lose a lot of hardworking, capable employees that care.”

The challenges and inconsistencies of implementing the accountability act has drawn the attention of several members of Congress, including Sen. Jon Tester (D-Mont.), ranking member of the Veterans Affairs Committee.

-anonymous survey comment from a VA employee

“We have been told of multiple instances in which managers have attempted to remove employees for actions such as missing a deadline or moving slowly after an injury, even when they were first offenses,” Tester and five other senators wrote in Feb. 26 letter to VA Secretary David Shulkin. “We are sure you would agree that these are not the types of offenses that rise to the level of immediate termination.”

Sens. Tammy Baldwin (D-Wis.), Sherrod Brown (D-Ohio), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii) and Patty Murray (D-Wash.) also signed the letter.

New HR guidance

New guidance from the Veterans Affairs Central Office, which Federal News Radio obtained, shows the department is giving VA supervisors the option of using progressive discipline with their employees instead of it being a manager’s main tool to deal with problematic employees.

According to an August 2017 memo from VA Assistant Secretary for Human Resources and Administration Peter Shelby, instead of placing employees on a Performance Improvement Plan (PIP),  supervisors can fire or demote an employee if:

  • An employee fails a critical element in his or her performance plan;
  • There’s a “reasonable belief” that an employee’s “performance deficiency is so serious that it cannot be improved;”
  • The deficiency poses a clear danger to the employee or others;
  • The deficiency presents a risk to important services for veterans; or
  • An employee repeatedly fails non-critical elements of his or her performance plan.

The memo applies to “covered employees” under a new section that the accountability act created. That new section covers employees under Title 5 and some employees under Title 38 of the U.S. Code, which dictates personnel policy for health professionals.

“VA facilities are expected to adhere to this guidance (i.e., not use performance improvement plans) when implementing adverse action for covered employees,” the department’s spokesman, Curt Cashour, told Federal News Radio. “Improvement plans may be used when addressing performance deficiencies for employees not covered by [the new section.”]

Shelby wrote in the memo: “A performance-based action taken under the act may be based upon a covered employee’s deficiencies noted in an issued final rating, closeout rating or recent progress review. A performance-based action can also be taken under the act if written communication (e.g., an email or memorandum) about his or her performance deficiency was provided to the covered employee at least once during the rating cycle.”

It’s no longer required that employees serve a 90-day performance improvement plan (PIP), Shelby’s memo reads. In addition, supervisors won’t use PIPs to address an employee’s performance deficiencies before proposing a removal or demotion, the memo states.

A separate training document that VA gave to its employees about the VA Accountability Act, which Federal News Radio obtained, describes supervisors’ new flexibilities in more detail.

“Management can also base an adverse action on performance deficiencies noted during the rating cycle, provided it was shared with the employee, in some form of written communication (e.g. email or memo), the guidance said.

To be clear, the department isn’t overtly defying the law. In fact, one sentence in the new VA Accountability Act — “the procedures under chapter 43 of Title 5 shall not apply to a removal, demotion or suspension — lets VA off the hook from the policies that once governed performance appraisals at the department and still exist at most other agencies.

But employees say the new performance policies are demoralizing and stressful. The new guidance forces employees to move quickly to make standards that are increasingly more difficult to meet.

“We are hearing reports that not only has VA eliminated the use of performance improvement plans as a result of these new authorities, but you are no longer utilizing the table of penalties, and facilities are receiving guidance from VISNs that there should be no progressive discipline,” the senators wrote in their letter to the secretary.

Facilities within the Veterans Benefits Administration, have, in fact, received such guidance.

Clark, the head of field operations, directed managers in a  November 2017 memo to approach performance reviews and decisions with “compassion, consistency and common sense” and required employees to meet their performance targets every pay period or month.

Employees who are unsuccessful on one or more of the critical elements in their performance plans have “up to four pay periods (two months) to correct performance deficiencies.” If they fail to meet performance targets during those two months, managers should propose a removal or demotion, the VBA memo said.

Employees have “only one opportunity to correct a performance deficiency each appraisal year,” Clark’s memo reads.

A process like VBA’s could work if a supervisor strikes consistent communication with the employee and the supervisor is well-trained to provide constructive criticism, a former government official with knowledge of the VA, who requested anonymity because they didn’t get permission to speak to the press, said.

“Performance management is as much about providing support to the employee and providing enough time for them to do so than it is to simply check the box every month,” the former official said.

Some employees may need more support, guidance or skills-based training or resources to thrive, the former official said. Generally, a performance improvement plan is a valuable best practice.

“It’s a two-way agreement,” the former official said. “In other words, the employee commits to trying to address these deficiencies, but the supervisor’s also committing to providing the employee with training or with additional time or accommodations of some sort, to actually make it possible for this employee to improve their performance and retain their position. That’s what makes them a very powerful and longstanding human capital tool.”

Tester, who helped negotiate the provisions of the VA Accountability Act and co-sponsored the bill, said last year he believed lawmakers and the department had engaged in apolitical discussions and ultimately crafted legislation that protected hardworking employees and disciplined middle managers at the root of VA’s cultural problems.

But VA’s implementation of the law so far is “disappointing,” Tester and his Democratic colleagues said, because they expected the department would use its new authorities to more quickly discipline employees who had a documented habit of poor performance or misconduct — not simply first time offenders who made a mistake or failed an element of their performance plans once.

“In our many conversations leading up to the bill’s passage, we discussed utilization of these authorities in cases of egregious conduct, but that is not how it currently appears to be executed by your agency,” the senators wrote in the Feb. 26 letter.

When shown copies of VA’s performance memos, the former executive said, “If that’s the way you approach your human capital [and] your employees, that’s a recipe for long term failure of the organization.”

‘It takes at least two years to become good’

VBA’s new guidance is particularly hard to reconcile, employees said, as it often takes at least two years become a proficient veterans service representative (VSR) or rating specialist.

“You have to make sure that these individuals have the appropriate training, and not just training, but re-training, because there’s a lot of changes in policy in how you evaluate claims and the kinds of evidence you accept for determining a specific rating,” the former government official said. “It’s very complicated stuff. … And you certainly need a lot of supervisory oversight and support, and if those things are missing, the chances of that individual employee who may want to do a good job on behalf of the veterans and on behalf of the department, the chances of them failing or not performing are quite high.”

VSRs and other benefits specialists use a specific manual to calculate a veteran’s benefit determination for a pension, disability or compensation. VSRs typically see three-to-five changes to the manual in one week, depending on changes to the law or statute, said David Bump, an AFGE vice president for VBA.

With constant changes to the laws and statutes, consistent training becomes particularly important, but it’s been spotty in recent years, Bump said.

The chart above shows the number of senior-level employees VA has fired since the president signed the Accountability and Whistleblower Protection Act. (Graphic by David Thornton)

“If there’s a law change or a new court interpretation comes out or a new procedure comes out, management will conduct a training on it, usually via [Microsoft Lync],” he said. “There’s no opportunity to ask questions or anything like that, it’s just dissemination of information.”

One of Bump’s colleagues in Portland has asked repeatedly for a refresher course and has been denied, he said.

“[Management said] ‘You just need to slow down.’ Yet if you slow down, you’re at risk of not meeting your performance standard,” he said. “No [one] wants to slow down, because you have to keep your job.”

Rihel said his colleagues at the Philadelphia VBA had also been denied training. Since January of this year, VBA has proposed 14 disciplinary actions using new guidance, Rihel said.

VBA’s performance standards should be possible to meet, because the agency had already met similar numbers in previous years, VBA’s Frueh wrote in the email.

“They are not some back door means to outsource work or to create unattainable goals,” he said. “We spent months creating them and worked the problem in two directions — bottom up and top down.”

It’s less clear how supervisors at the Veterans Health Administration (VHA) are implementing performance standards.

“It’s really just [the] wild, wild west,” Cathy McQuiston, deputy general counsel for the American Federation of Government Employees, said of the VHA. “I’ve seen an email from a supervisor to an employee giving them 45 days to improve. I’ve seen other communications giving other employees at a different facility a different amount of time to improve.”

AFGE, which represents more than 220,000 VA employees, has filed a grievance against the department for its implementation of the accountability act’s performance guidance. The union is waiting for an arbitrator’s decision in an April hearing before it can move forward.

Few records

The accountability law required VA to submit a detailed report on the average time it took to initiate and resolve an adverse action, the number of steps involved in that disciplinary process, the number of appeals employees filed in response to a disciplinary action and the results of those appeals.

Yet VA delivered the report two months later than the Dec. 31, 2017 deadline, senators said, and the department’s three-page report lacked nearly all of the details Congress requested.

VA’s report did mention an average time of 55 days from disciplinary proposal to action from Jan. 2015 through June 22, 2017 — before the president signed the accountability act into law.

The department’s lack of detail frustrated the senators, who described VA’s “unwillingness to request this data from the field” as “disappointing to say the least.”

VA said it couldn’t comply with the congressional reporting requirements because its current, “ad-hoc” system can’t properly capture the full scope of the disciplinary process across the department.

“The Office of Accountability and Whistleblower Protection (OAWP) will discontinue use of the current ad-hoc system once an effective disciplinary tracking capability is in place,” VA wrote in the report. “The OAWP is working in partnership with HR&A to implement improvements to the HR SMART system to create a comprehensive and effective discipline tracking capability for the department. The improvements expect to be identified and implementation strategy developed by the fourth quarter of [fiscal] 2018.”

The former government official said VA is correct: HR managers at the agency’s medical centers and field offices can track disciplinary actions and their outcomes, but the department lacks a centralized data system for this information.

Officials from VA’s Office of Accountability and Whistleblower Protection met with congressional staff to discuss concerns described in the Feb. 26 letter, the agency’s spokesman said.

Senators are also concerned about the lack of permanent leadership at VA’s OAWP. The Accountability Act requires a presidentially-appointed, Senate-confirmed assistant secretary lead that office. VA Secretary David Shulkin named Peter O’Rourke to lead the accountability office, but he hasn’t been appointed by the president or confirmed by the Senate. O’Rourke also recently took over as Shulkin’s new chief of staff after Vivieca Wright Simpson announced her retirement in the wake of a scathing of inspector general report.

‘They didn’t serve’

Though Rihel and Bump both say they have no plans to leave the agency, they said their colleagues are looking for an escape.

“Everybody is either miserable, stressed to the breaking point or walking on egg shells because they think that any time they sneeze or get out of line, the management staff is going to try to fire them,” Rihel said.

The Milwaukee employee has thought about leaving VBA but wants to stay long enough to buy back military time. The employee took offense to the demotion — and the actions supervisors are taking.

“They didn’t serve,” the Milwaukee employee said. “They’re just number pushers. … People like me are here for the mission.”

Veterans make up nearly 33 percent of the VA workforce, according to the Office of Personnel Management’s most recent report on veterans employment. Rihel said VA’s own veteran employees are often at greater risk of failing to meet these performance standards.

“They’ve hired more vets over the past five years, so those are the ones who are there,” he said. “They’re the ones who are newest, and they’re the ones who are having the most trouble just based on the situation. Because of that, they’re the ones who are going to be terminated. It’s disproportionately hitting vets, but that’s not a number that VA is quantifying in their report.”

According to VA’s most recent public accountability report, the department fired at least 1,873 people since the president signed the new law.

VA publicly updated a biweekly report on its website, which details the number, position, month and action the department has taken for each completed disciplinary case. These reports are on hold, however, while the department transitions to the new data tracking system, the website said.

But some lawmakers have been alarmed so far by the data.

“When Congress passed the accountability bill, we made it very clear that the legislation was intended to get rid of poorly performing employees who jeopardize veterans’ health care,” Tester said in a statement to Federal News Radio. “It is critical that the VA not lose sight of that goal, and I will hold the secretary responsible for using it to change the culture at the VA for the better.”

Specifically, Tester said he would ensure VA receives enough funding to make improvements to its HR SMART data system in the upcoming appropriations process.

Senators asked that VA send new guidance clarifying that VBA, for example, wouldn’t apply its new performance review policy on first time offenses — and that supervisors should apply “progressive discipline” with their employees.

The department hasn’t yet responded to the senators letter and hasn’t sent out such guidance, Tester said.

The department said it appreciates Congress’ concerns, Cashour said.

VA is developing a departmentwide employee engagement strategy, Cashour said, when asked about employee morale. The new strategy will use “evidence-based data to improve the workplace” and “process improvement methods that employees drive and own.” VA will develop and display “servant leadership behaviors” among its leaders and invest in “employee/leader development behaviors,” Cashour added.

Senate VA Committee Chairman Johnny Isakson (R-Ga.), who co-sponsored the VA Accountability Act with Tester, also acknowledged challenges with the department’s approach to implementation.

“We have heard some concerns about the accountability law’s implementation, and we are actively working with the VA to monitor implementation to ensure the department has the best workforce possible,” a spokeswoman for the committee told Federal News Radio.

Continue to part 2 of this story, which explores the largest federal union’s reaction to the implementation of this accountability law.

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