Know Your Rights

Know Your Rights

Update:  Some of the below material, especially as regards Performance Improvement Plans (PIP), and to a lesser extent Discipline and Grievances, is changing following implementation of the Department of Veterans Affairs Accountability and Whistleblower Protection Act.  At this time, it is too soon to know the full practical consequences of these changes, or what, if anything, the Union can do to mitigate them.  We will update this section once a greater degree of clarity has been established.

Discipline

Facing a proposed disciplinary action can be a daunting experience. Understanding the process, however, can help alleviate the anxiety.

The Department must notify you of your right to Union representation if any supervisor, while questioning you, or in advance of questioning you, considers the possibility of disciplinary action. If or when that happens, we strongly suggest that you assert your right to Union representation.

Management cannot issue any form of discipline without first adhering to various due process provisions of the Master Collective Bargaining Agreement between VA and AFGE (“Master Agreement”). In general, an employee facing a proposed admonishment or reprimand is entitled to a 14-day advance written notice, while an employee facing a proposed suspension, adverse action, or major adverse action must receive a 30-day advance written notice.

In either case, it is important to contact the Union as soon as possible so that we may initiate our own investigation, if necessary, and prepare your response, which may be verbal, in writing, or both.

If discipline is issued, the Union can file a grievance on your behalf within 30 days of you receiving Management’s notice.

The Master Agreement protects you from unwarranted disciplinary charges. For example, you cannot be subject to disciplinary action except for just and sufficient cause. Moreover, the Department is bound by the concept of progressive discipline, which is intended primarily to correct and improve behavior, rather than to punish. Discipline must also be applied fairly and equitably, and cannot be used to harass an employee.

The Union is here to represent you at every step of the process, including any investigation, response to the charge, and filing a grievance should the proposed disciplinary or adverse action be effectuated. 

Telework

Given the DC area’s tough commutes, the ability to telework is critical for many
of us at VA Central Office (VACO). With this in mind, AFGE Local 17 has negotiated telework agreements for hundreds of VACO Bargaining Unit employees.

Telework is purely voluntary. The ability to telework is generally based on two factors: (1) whether your position is suitable for telework, and (2) whether you are eligible to telework. Suitability refers to whether the primary duties of the position can be accomplished in an alternate duty station (ADS), while eligibility refers to whether the employee should be allowed to telework.

Here are some general rights and responsibilities concerning telework:

• An employee wishing to telework must first sign a Telework Program Agreement with his or her supervisor.
• A teleworking employee must still work on days when Government offices are closed due to inclement weather.
• A teleworking employee must promptly notify his or her supervisor whenever a problem arises which affects the ability to work from home, such as equipment failure, power outage, telecommunications difficulties, etc.
• Employees shall not be disadvantaged as regards performance expectations due to their telework status. The Department shall use the same work metrics and standards for employees who telework as for those who work in the office.
• Even on approved telework days, an employee may be recalled to his or her official duty station for previously-scheduled training, conferences, or meetings, or to perform work on a short-term basis that cannot be performed at home.
• An employee’s telework status may be revoked for failure to adhere to the requirements of his or her Telework Program Agreement and/or a decline in overall performance below the Fully Successful level.
• Normally, an employee’s telework status cannot be revoked for a single, minor infraction of telework program requirements. Moreover, a supervisor must counsel the employee in writing about specific problems before revoking telework status.

Please contact the Union if Management wants to change or revoke your Telework Program Agreement. We are here to fight for your rights!

Changes to Working Conditions

Management has many rights. Fortunately, employees have the right to bargain over changes to personnel policies or working conditions if the effects of those changes are greater than de minimis (i.e., more than trivial.)

Here are a few examples:

Changes to your performance standards
Management has the right to determine the content of performance standards, provided they are reasonable, but the Union has the right to bargain over the impact and implementation of those standards.

Office moves
While a decision by Management to move offices is not negotiable, they have a duty to bargain over implementation of the move as well as over arrangements for adversely affected employees.

Break areas
Management cannot remove a break area without notifying and bargaining with the Union. At one location, a supervisor unilaterally decided to remove a microwave and coffee pot from a counter near the office printer. However, management had a duty to bargain.

Scheduling
Management must bargain over any change to an employee’s schedule. This includes any change to a Compressed Work Schedule, which can only be made for a valid operation need.

Telework
Management must bargain over any change to your Telework Program Agreement.

Details or temporary assignments
Employees often seek out temporary details or assignments, but it is not unheard of for Management to send someone on a detail against their will. Although this is a Management right, one can avoid an unwanted assignment if a coworker with the same qualifications has less seniority.

The following matters are not “conditions of employment;” thus Management has no duty to bargain over them:

• Matters relating to political activities prohibited under the Hatch Act.
• Matters relating to classification.
• Matters that are “specifically provided for by federal statute.” For example, the Union is unable to require that employees be paid at a certain GS level, as this matter is specifically provided for by statute. The Department has no discretion to bargain over wage rates established by law; thus wage rates are excluded from the definition of conditions of employment.

Performance

The following rights pertain to your performance standards and appraisal:

• Management must establish performance standards that accurately reflect what they need you to do.
• Performance standards must, to the greatest extent possible, use objective criteria that are reasonable, realistic, and attainable.
• You cannot be held accountable for factors beyond your control.
• Management must provide you with an annual performance appraisal no later than 60 calendar days from the end of the appraisal period.
• Management must provide you with a mid-year review.
• Management must provide you with the opportunity to submit a self-assessment to be considered in connection with your annual appraisal.
• The Union has a right to bargain when Management proposes to change your performance standards.
• You have an absolute right to Union representation when management determines that your performance is unacceptable in a critical element, thereby requiring you to be put on a performance improvement plan (PIP). This is discussed in more detail in the next section.

Other than PIP situations, you do not have the right to Union representation during
your mid-year review or your annual performance appraisal.

Performance Improvement Plan (PIP)

Management’s determination that an employee’s performance is unacceptable in a critical element is a serious matter, as this is often their first step in issuing a performance-based action, which may involve removal from Federal service if the employee does not improve. The Master Agreement, however, guarantees certain rights in this area, and the Union is here to assist at every step of the process.

Under the Master Agreement, Management must provide the employee an opportunity to improve his or her performance within the context of a performance improvement plan (PIP).

The PIP must:

• Be in writing.
• Be developed in consultation with the employee and the Union.
• Be more than just a performance review. To this end, it must identify the employee’s specific performance deficiency; the intended, successful level of performance; the action(s) that must be taken to achieve the successful level of performance; and the methods to be used in measuring that improvement.
• Be tailored to the specific needs of the employee, to include additional instructions, counseling, assignment of a mentor, or other assistance, as appropriate. (For example, if the employee is unable to meet the critical element due to lack of organizational skills, the resulting PIP might include training on time management.)
• Afford the employee at least 90 calendar days to resolve the performance deficiency. (This period may be extended.)
• Not be used if the performance deficiency is caused by circumstances beyond the employee’s control—in which case, the supervisor should consider means other than a PIP for addressing the deficiency.

Failure to improve during the PIP period may result in the employee’s removal, reduction to a lower grade, or reassignment.

The Union has had tremendous success in representing employees on PIPs. In one case in which an employee was removed, the Union took the case to arbitration, resulting in the employee’s reinstatement with full back-pay.

Hours of Work and Overtime

Although Management must notify the Union about any proposed changes to your schedule, that does not always happen. Please contact the Union if you have any concerns regarding your hours of work as well as overtime, if applicable.

Per the Master Agreement, employees are generally entitled to:

• Two rest periods of 15 minutes duration per eight-hour shift, normally one taken in the first half and one in the second half of the shift.
• A 30-minute lunch break. (Some units within VA Central Office allow employees to take a one-hour lunch break by combining their two 15-minute rest periods.)

Alternative work schedules (AWS) may involve flextime, credit hours, or a compressed work schedule. The Department must apply AWS in a fair and equitable matter, considering both operational needs and the interests of employees.

• Flexible work schedule means an eight-hour workday in which the employee may vary the time of arrival and/or departure. For example, an employee selecting 7:30 am as a start time may report to work any time between 7:15 am and 7:45 am. Changes in start time must be approved by the supervisor.
• Credit hours are those hours within a flexible work schedule in excess of the employee’s daily tour of duty which are performed at the employee’s option with the approval of his/her supervisor, so as to vary the length of a succeeding workday or workweek. Employees cannot be required to work credit hours in lieu of overtime.
• Compressed work schedule (CWS) means, in the case of a full-time employee, an 80-hour biweekly basic work requirement that is scheduled for less than 10 workdays, and in the case of a part-time employee, a biweekly basic work requirement of less than 80 hours that is scheduled for less than 10 workdays, and that (in either case) requires the employee to work more than eight hours on some or all duty days. Each employee desiring to work under a CWS plan must submit a written request to their supervisor for a decision, which the Department must act on within 30 calendar days.

CWS options include:

1. “5-4-9” is a work schedule that comprises eight workdays of nine hours each plus one workday of eight hours within the biweekly pay period.
2. “4-10” is a work schedule that includes eight workdays of ten hours in each biweekly pay period.
3. “6-12-8” is a work schedule that includes six twelve-hour workdays and one eight-hour workday.

Overtime must be distributed in a fair and equitable manner, and must be paid in increments of 15 minutes. When overtime is required, Management must give the employee as much notice as possible, and must also give due consideration to his or her personal circumstances.

Leave

Annual leave is provided for rest and relaxation. It is an absolute right, subject to Management’s prerogative to determine when it may be taken.

Subject to approval, employees have a right to two consecutive weeks of annual leave each year. You do not have a right to take annual leave for periods longer than two consecutive weeks. However, this does not mean that a supervisor cannot approve leave for longer periods.

For planned vacations, employees should submit annual leave requests as far in advance as possible. Management must render a timely decision on the leave request, but regardless, be sure that the request is granted before you check out.

For unplanned leave, the employee must contact their supervisor or designee to request leave. You risk an AWOL charge if you take unplanned annual leave without prior approval.

With respect to annual leave for serious personal needs (emergency situations), if leave must begin immediately, the employee must contact the supervisor or designee to request the leave. There must always be someone on duty to act on leave requests. The employee will be informed on the spot as to whether the leave request is granted. In the event that your supervisor is not available and you cannot reach his or her designee, you should leave a detailed message along with your contact information, then follow up with an email (if the initial request was made by phone.) Without prior approval of annual leave for serious personal needs, you still risk an AWOL charge. To mitigate that risk, contact as many supervisors in your chain of command as necessary in order to get approval. It is easier to defend against an AWOL charge if the employee made a good-faith effort to get prior approval for the leave request.

Sick leave may be used for illness, medical appointments, care of ill family members, deaths in the family, the adoption process, and health authority determinations that the employee presents a risk to others. The need for sick leave is usually less predictable than the need for annual leave. Nonetheless, it is a good idea to notify your supervisor in advance, if possible, regarding the need for sick leave.

There must always be someone on duty who can act on leave requests. If the supervisor or his or her designee are not available, the employee must leave a message for the supervisor or designee stating the type of leave requested. In the event that the employee does not have sufficient sick leave available, annual leave or leave-without-pay (LWOP) may be used.

When the employee expects to be out for more than one day, he or she must state the expected return-to-duty date, and keep the supervisor apprised of any changes.

Generally, no documentation is needed for sick leave that lasts three days or less. For periods of sick leave in excess of three days, the employee may usually provide self-certification explaining why a healthcare provider was not consulted. Additionally, documentation is not generally required for employees with chronic medical conditions resulting in periodic absences from work; however, medical certification regarding the chronic condition may be required every six months.

Grievances

A “grievance” is any complaint from or on behalf of a Bargaining Unit employee or employees concerning any matter relating to employment, including a violation of the Master Agreement or of any law, rule, or regulation affecting conditions of employment.

It is important to remember that if the grievance route is selected, other recourses such as EEO generally cannot be pursued.

A grievance can be filed within 30 calendar days of the claimed violation, or up to 30 calendar days from when the grieving became aware of or should have become aware of the violation (unless the violation is ongoing.) Thus, it is important to contact the Union as soon as you become aware of an issue that you would like to grieve. You have the right to reasonable time to meet with the Union in connection with a grievance, but make sure to let your supervisor know that you will be away from your desk.

When meeting with the Union regarding a potential grievance, make sure to bring
relevant documents, names of witnesses, and other information that will assist your steward in understanding the facts of your case. Your steward will be with you at every step to ensure that your rights are protected.