H.R. 1994 — what changed

changed “714. “715. Employees: removal or demotion based on performance or misconduct

changed “(a) In general—The Secretary may remove or demote an individual who is an employee of the Department of Veterans Affairs if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. If the Secretary so removes or demotes such an individual, the Secretary may—

“(1) remove the individual from the civil service (as defined in section 2101 of title 5); or

“(2) demote the individual by means of—

“(A) a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or

“(B) a reduction in annual rate of pay that the Secretary determines is appropriate.

changed “(b) Pay of certain demoted Individualsindividuals

“(1) Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(2)(A) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade.

“(2) An individual so demoted may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an individual so demoted does not report for duty, such individual shall not receive pay or other benefits pursuant to subsection (e)(5).

“(c) Notice to Congress—Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives notice in writing of such removal or demotion and the reason for such removal or demotion.

“(d) Procedure

“(1) The procedures under section 7513(b) of title 5 and chapter 43 of such title shall not apply to a removal or demotion under this section.

“(2)

“(A) Subject to subparagraph (B) and subsection (e), any removal or demotion under subsection (a) may be appealed to the Merit Systems Protection Board under section 7701 of title 5.

“(B) An appeal under subparagraph (A) of a removal or demotion may only be made if such appeal is made not later than seven days after the date of such removal or demotion.

“(e) Expedited Review by Administrative Judge

“(1) Upon receipt of an appeal under subsection (d)(2)(A), the Merit Systems Protection Board shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5. The administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 45 days after the date of the appeal.

“(2) Notwithstanding any other provision of law, including section 7703 of title 5, the decision of an administrative judge under paragraph (1) shall be final and shall not be subject to any further appeal.

“(3) In any case in which the administrative judge cannot issue a decision in accordance with the 45-day requirement under paragraph (1), the removal or demotion is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or demotion is final, submit to Congress and the Committees on Veterans' Affairs of the Senate and House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement.

“(4) The Merit Systems Protection Board or administrative judge may not stay any removal or demotion under this section.

“(5) During the period beginning on the date on which an individual appeals a removal from the civil service under subsection (d) and ending on the date that the administrative judge issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.

“(6) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board, and to any administrative judge to whom an appeal under this section is referred, such information and assistance as may be necessary to ensure an appeal under this subsection is expedited.

changed “(f) Limitation on removal or demotion—In the case of an individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.Whistleblower protection

changed “(g) Relation to Title 5—The authority provided by this section “(1) In the case of an individual seeking corrective action (or on behalf of whom corrective action is in addition to sought) from the authority provided by subchapter V Office of chapter 75 Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5 and chapter 43 of 5, the Secretary may not remove or demote such title.individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.

changed “(h) Definitions—In “(2) In the case of an individual who has filed a whistleblower complaint, as such term is defined in section 731 of this section:title, the Secretary may not remove or demote such individual under subsection (a) until the central whistleblower office under section 732(h) of this title has made a final decision with respect to the whistleblower complaint.

changed “(1) The term individual means “(g) Termination of investigations by Office of Special Counsel—Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5) may terminate an individual occupying investigation of a position at prohibited personnel practice alleged by an employee or former employee of the Department after the Special Counsel provides to the employee or former employee a written statement of Veterans Affairs but does the reasons for the termination of the investigation. Such statement may not include—be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee.

added “(h) Relation to Title 5—The authority provided by this section is in addition to the authority provided by subchapter V of chapter 75 of title 5 and chapter 43 of such title.

added “(i) Definitions—In this section:

added “(1) The term individual means an individual occupying a position at the Department but does not include—

“(A) an individual, as that term is defined in section 713(g)(1); or

“(B) a political appointee.

“(2) The term grade has the meaning given such term in section 7511(a) of title 5.

“(3) The term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

“(4) The term political appointee means an individual who is—

“(A) employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);

“(B) a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or

“(C) employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.”

changed “(4) any removal or demotion under section 714 715 of title 38.”

added “717. Probationary period for employees

removed “715. Probationary period for employees

“(a) In general—Notwithstanding sections 3321 and 3393(d) of title 5, the appointment of a covered employee shall become final only after such employee has served a probationary period of 18 months. The Secretary may extend a probationary period under this subsection at the discretion of the Secretary.

“(b) Covered employee—In this section, the term “covered employee”—

“(1) means any individual—

“(A) appointed to a permanent position within the competitive service at the Department; or

“(B) appointed as a career appointee (as that term is defined in section 3132(a)(4) of title 5) within the Senior Executive Service at the Department; and

“(2) does not include any individual with a probationary period prescribed by section 7403 of this title.

“(c) Permanent hires—Upon the expiration of a covered employee’s probationary period under subsection (a), the supervisor of the employee shall determine whether the appointment becomes final based on regulations prescribed for such purpose by the Secretary.”

added “II Whistleblower complaints

added “731. Whistleblower complaint defined

added “In this subchapter, the term whistleblower complaint means a complaint by an employee of the Department disclosing, or assisting another employee to disclose, a potential violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.

added “732. Treatment of whistleblower complaints

added “(a) Filing

added “(1) In addition to any other method established by law in which an employee may file a whistleblower complaint, an employee of the Department may file a whistleblower complaint in accordance with subsection (g) with a supervisor of the employee.

added “(2) Except as provided by subsection (d)(1), in making a whistleblower complaint under paragraph (1), an employee shall file the initial complaint with the immediate supervisor of the employee.

added “(b) Notification

added “(1) Not later than four business days after the date on which a supervisor receives a whistleblower complaint by an employee under this section, the supervisor shall notify, in writing, the employee of whether the supervisor determines that there is a reasonable likelihood that the complaint discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. The supervisor shall retain written documentation regarding the whistleblower complaint and shall submit to the next-level supervisor and the central whistleblower office described in subsection (h) a written report on the complaint.

added “(2) On a monthly basis, the supervisor shall submit to the appropriate director or other official who is superior to the supervisor a written report that includes the number of whistleblower complaints received by the supervisor under this section during the month covered by the report, the disposition of such complaints, and any actions taken because of such complaints pursuant to subsection (c). In the case in which such a director or official carries out this paragraph, the director or official shall submit such monthly report to the supervisor of the director or official and to the central whistleblower office described in subsection (h).

added “(c) Positive determination—If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint of an employee, the supervisor shall include in the notification to the employee under such subsection the specific actions that the supervisor will take to address the complaint.

added “(d) Filing complaint with next-level supervisors

added “(1) If any circumstance described in paragraph (3) is met, an employee may file a whistleblower complaint in accordance with subsection (g) with the next-level supervisor who shall treat such complaint in accordance with this section.

added “(2) An employee may file a whistleblower complaint with the Secretary if the employee has filed the whistleblower complaint to each level of supervisors between the employee and the Secretary in accordance with paragraph (1).

added “(3) A circumstance described in this paragraph are any of the following circumstances:

added “(A) A supervisor does not make a timely determination under subsection (b)(1) regarding a whistleblower complaint.

added “(B) The employee who made a whistleblower complaint determines that the supervisor did not adequately address the complaint pursuant to subsection (c).

added “(C) The immediate supervisor of the employee is the basis of the whistleblower complaint.

added “(e) Transfer of employee who files whistleblower complaint—If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint filed by an employee, the Secretary shall—

added “(1) inform the employee of the ability to volunteer for a transfer in accordance with section 3352 of title 5; and

added “(2) give preference to the employee for such a transfer in accordance with such section.

added “(f) Prohibition on exemption—The Secretary may not exempt any employee of the Department from being covered by this section.

added “(g) Whistleblower complaint form

added “(1) A whistleblower complaint filed by an employee under subsection (a) or (d) shall consist of the form described in paragraph (2) and any supporting materials or documentation the employee determines necessary.

added “(2) The form described in this paragraph is a form developed by the Secretary, in consultation with the Special Counsel, that includes the following:

added “(A) An explanation of the purpose of the whistleblower complaint form.

added “(B) Instructions for filing a whistleblower complaint as described in this section.

added “(C) An explanation that filing a whistleblower complaint under this section does not preclude the employee from any other method established by law in which an employee may file a whistleblower complaint.

added “(D) A statement directing the employee to information accessible on the Internet website of the Department as described in section 735(c).

added “(E) Fields for the employee to provide—

added “(i) the date that the form is submitted;

added “(ii) the name of the employee;

added “(iii) the contact information of the employee;

added “(iv) a summary of the whistleblower complaint (including the option to append supporting documents pursuant to paragraph (1)); and

added “(v) proposed solutions to complaint.

added “(F) Any other information or fields that the Secretary determines appropriate.

added “(3) The Secretary, in consultation with the Special Counsel, shall develop the form described in paragraph (2) by not later than 60 days after the date of the enactment of this section.

added “(h) Central whistleblower office

added “(1) The Secretary shall ensure that the central whistleblower office—

added “(A) is not an element of the Office of the General Counsel;

added “(B) is not headed by an official who reports to the General Counsel;

added “(C) does not provide, or receive from, the General Counsel any information regarding a whistleblower complaint except pursuant to an action regarding the complaint before an administrative body or court; and

added “(D) does not provide advice to the General Counsel.

added “(2) The central whistleblower office shall be responsible for investigating all whistleblower complaints of the Department, regardless of whether such complaints are made by or against an employee who is not a member of the Senior Executive Service.

added “(3) The Secretary shall ensure that the central whistleblower office maintains a toll-free hotline to anonymously receive whistleblower complaints.

added “(4) In this subsection, the term “central whistleblower office” means the Office of Accountability Review or a successor office that is established or designated by the Secretary to investigate whistleblower complaints filed under this section or any other method established by law.

added “733. Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints

added “(a) In general

added “(1) In accordance with paragraph (2), the Secretary shall carry out the following adverse actions against supervisory employees whom the Secretary, an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or the Inspector General of the Department determines committed a prohibited personnel action described in subsection (c):

added “(A) With respect to the first offense, an adverse action that is not less than a 14-day suspension and not more than removal.

added “(B) With respect to the second offense, removal.

added “(2)

added “(A) Except as provided by subparagraph (B), and notwithstanding subsections (b) and (c) of section 7513 and section 7543 of title 5, the provisions of subsections (d) and (e) of section 713 of this title shall apply with respect to an adverse action carried out under paragraph (1).

added “(B) An employee who is notified of being the subject of a proposed adverse action under paragraph (1) may not be given more than five days following such notification to provide evidence to dispute such proposed adverse action. If the employee does not provide any such evidence, or if the Secretary determines that such evidence is not sufficient to reverse the determination to propose the adverse action, the Secretary shall carry out the adverse action following such five-day period.

added “(b) Limitation on other adverse actions—With respect to a prohibited personnel action described in subsection (c), if the Secretary carries out an adverse action against a supervisory employee, the Secretary may carry out an additional adverse action under this section based on the same prohibited personnel action if the total severity of the adverse actions do not exceed the level specified in subsection (a).

added “(c) Prohibited personnel action described—A prohibited personnel action described in this subsection is any of the following actions:

added “(1) Taking or failing to take a personnel action in violation of section 2302 of title 5 against an employee relating to the employee—

added “(A) filing a whistleblower complaint in accordance with section 732 of this title;

added “(B) filing a whistleblower complaint with the Inspector General of the Department, the Special Counsel, or Congress;

added “(C) providing information or participating as a witness in an investigation of a whistleblower complaint in accordance with section 732 or with the Inspector General of the Department, the Special Counsel, or Congress;

added “(D) participating in an audit or investigation by the Comptroller General of the United States;

added “(E) refusing to perform an action that is unlawful or prohibited by the Department; or

added “(F) engaging in communications that are related to the duties of the position or are otherwise protected.

added “(2) Preventing or restricting an employee from making an action described in any of subparagraphs (A) through (F) of paragraph (1).

added “(3) Conducting a peer review or opening a retaliatory investigation relating to an activity of an employee that is protected by section 2302 of title 5.

added “(4) Requesting a contractor to carry out an action that is prohibited by section 4705(b) or section 4712(a)(1) of title 41, as the case may be.

added “734. Evaluation criteria of supervisors and treatment of bonuses

added “(a) Evaluation criteria

added “(1) In evaluating the performance of supervisors of the Department, the Secretary shall include the criteria described in paragraph (2).

added “(2) The criteria described in this subsection are the following:

added “(A) Whether the supervisor treats whistleblower complaints in accordance with section 732.

added “(B) Whether the appropriate deciding official, performance review board, or performance review committee determines that the supervisor was found to have committed a prohibited personnel action described in section 733(b) by an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or, in the case of a settlement of a whistleblower complaint (regardless of whether any fault was assigned under such settlement), the Secretary.

added “(b) Bonuses

added “(1) The Secretary may not pay to a supervisor described in subsection (a)(2)(B) an award or bonus under this title or title 5, including under chapter 45 or 53 of such title, during the one-year period beginning on the date on which the determination was made under such subsection.

added “(2) Notwithstanding any other provision of law, the Secretary shall issue an order directing a supervisor described in subsection (a)(2)(B) to repay the amount of any award or bonus paid under this title or title 5, including under chapter 45 or 53 of such title, if—

added “(A) such award or bonus was paid for performance during a period in which the supervisor committed a prohibited personnel action as determined pursuant to such subsection (a)(2)(B);

added “(B) the Secretary determines such repayment appropriate pursuant to regulations prescribed by the Secretary to carry out this section; and

added “(C) the supervisor is afforded notice and an opportunity for a hearing before making such repayment.

added “735. Training regarding whistleblower complaints

added “(a) Training—The Secretary, in coordination with the Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. App.), shall annually provide to each employee of the Department training regarding whistleblower complaints, including—

added “(1) an explanation of each method established by law in which an employee may file a whistleblower complaint;

added “(2) an explanation of prohibited personnel actions described by section 733(c) of this title;

added “(3) with respect to supervisors, how to treat whistleblower complaints in accordance with section 732 of this title;

added “(4) the right of the employee to petition Congress regarding a whistleblower complaint in accordance with section 7211 of title 5;

added “(5) an explanation that the employee may not be prosecuted or reprised against for disclosing information to Congress in instances where such disclosure is permitted by law, including under sections 5701, 5705, and 7732 of this title, under section 552a of title 5 (commonly referred to as the Privacy Act), under chapter 93 of title 18, and pursuant to regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191);

added “(6) an explanation of the language that is required to be included in all nondisclosure policies, forms, and agreements pursuant to section 115(a)(1) of the Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 2302 note); and

added “(7) the right of contractors to be protected from reprisal for the disclosure of certain information under section 4705 or 4712 of title 41.

added “(b) Certification—The Secretary shall annually provide training on merit system protection in a manner that the Special Counsel certifies as being satisfactory.

added “(c) Publication

added “(1) The Secretary shall publish on the Internet website of the Department, and display prominently at each facility of the Department, the rights of an employee to file a whistleblower complaint, including the information described in paragraphs (1) through (7) of subsection (a).

added “(2) The Secretary shall publish on the Internet website of the Department, the whistleblower complaint form described in section 732(g)(2).

added “736. Reports to Congress

added “(a) Annual reports—The Secretary shall annually submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report that includes—

added “(1) with respect to whistleblower complaints filed under section 732 during the year covered by the report—

added “(A) the number of such complaints filed;

added “(B) the disposition of such complaints; and

added “(C) the ways in which the Secretary addressed such complaints in which a positive determination was made by a supervisor under subsection (b)(1) of such section;

added “(2) the number of whistleblower complaints filed during the year covered by the report that are not included under paragraph (1), including—

added “(A) the method in which such complaints were filed;

added “(B) the disposition of such complaints; and

added “(C) the ways in which the Secretary addressed such complaints; and

added “(3) with respect to disclosures made by a contractor under section 4705 or 4712 of title 41—

added “(A) the number of complaints relating to such disclosures that were investigated by the Inspector General of the Department of Veterans Affairs during the year covered by the report;

added “(B) the disposition of such complaints; and

added “(C) the ways in which the Secretary addressed such complaints.

added “(b) Notice of Office of Special Counsel determinations—Not later than 30 days after the date on which the Secretary receives from the Special Counsel information relating to a whistleblower complaint pursuant to section 1213 of title 5, the Secretary shall notify the Committees on Veterans’ Affairs of the House of Representatives and the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of such information, including the determination made by the Special Counsel.”

added “I General employee matters”