TITLE 38 FEDERAL EMPLOYEES

Medical professionals who work at federal agencies such as the Veterans Health Administration or National Institute of Health (NIH) are usually appointed under Title 38 of the United States Code Section 7401(1). As a Title 38 employee, your rights differ significantly from other federal employees.

The Employment Law Group® has substantial practical experience representing Title 38 licensed professionals in both internal and external administrative proceedings and in court, and in particular obtaining injunctive relief to stop the VA and other agencies from taking adverse actions against Title 38 federal employees that could impact their licensing.

In Shen v. Shinseki, The Employment Law Group® obtained a rare order from the federal court prohibiting the U.S. Department of Veterans Affairs from terminating our client, a Title 38 physician, while her civil rights complaint was pending before the Equal Employment Opportunity Commission.  The ruling sent a clear message that federal agencies are not free to abuse the EEOC process.  John Preston Bailey, chief judge for the U.S. District Court for the Northern District of West Virginia, issued a preliminary injunction preventing the agency from terminating our client until her EEOC claims are resolved.

If you believe that you have been treated unfairly at work, it is particularly important to know your legal rights. As a medical professional, an adverse employment action such as a demotion or reprimand can follow you for the rest of your career.

Which federal employees are appointed under Title 38?
How do the rights of Title 38 federal employees differ from other federal employees?
What other federal laws protect Title 38 employees?
What experience does The Employment Law Group® law firm have with representing Title 38 employees?
What should I do if I am being treated unfairly at work?

Which federal employees are appointed under Title 38? Back to top.

Pure Title 38 employees generally occupy one of the following positions:

• Physician
• Dentist
• Podiatrist
• Chiropractor
• Optometrist
• Registered Nurse
• Physician Assistant
• Expanded-function dental Auxiliary

However, federal employees with rights that may be split between Title 38 and Title 5 generally occupy these positions:

• Scientific and professional personnel, such as microbiologists, chemists, and biostatisticians
• Audiologists, speech pathologists, and audiologist-speech pathologists
  
• Biomedical engineers,
  
• Certified or registered respiratory therapists
  
• Dietitians
  
• Licensed physical therapists, physical therapy assistants, or prosthetic representatives
  
• Licensed practical or vocational nurses
  
• Medical instrument technicians, medical records administrators or specialists, medical records technicians, or medical technologists
  
• Dental hygienists or dental assistants
  
• Nuclear medicine technologists
  
• Occupational therapists or occupational therapy assistants
  
• Kinesiotherapists
  
• Orthotist-prosthetists
  
• Pharmacists or pharmacy technicians
  
• Psychologists
  
• Diagnostic radiologic technologists or therapeutic radiologic technologists
  
• Social workers
  
• Marriage and family therapists
  
• Licensed professional mental health counselors
  
• Blind rehabilitation specialists or blind rehabilitation outpatient specialists.
  

How do the rights of Title 38 federal employees differ from other federal employees? Back to Top.

Title 38 employees appointed under section 7401(1) are subject to a different remedial process for personnel actions, and generally cannot appeal personnel actions to the Merit Systems Protection Board (MSPB), with some exceptions. Instead, remedies are usually more streamlined and leave employers with more discretion to institute adverse employment actions. Significant features of the Title 38 remedial scheme include:

• Appeals of personnel actions to the Medical Center Director, a Disciplinary Appeals Board, and the United States Court of Appeals for the Federal Circuit for major adverse actions involving a question of professional competency or conduct.
• Appeals of other adverse actions through various administrative procedures as provided by regulation.
• The option to appeal personnel actions through a Title 5 collective bargaining agreement.
• The requirement that medical staff appointments and privileges be reviewed periodically by a Professional Standards Board.

What other federal laws protect Title 38 employees? Back to top.

While Title 38 employees may use a different remedial scheme for personnel actions, Title 38 employees are still protected from unlawful conduct, such as discrimination and retaliation, by other federal statutes. For example, Title 38 employees are still covered by:

• Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from employment discrimination on bases such as race, national origin, and sex. Title VII also protects employees from retaliation in certain circumstances.
• Age Discrimination in Employment Act. The ADEA provides protection from employment discrimination on the basis of age.
• Rehabilitation Act of 1973. The Rehabilitation Act prohibits discrimination in federal employment on the basis of certain disabilities much the same as Title VII protects federal employees from discrimination on the basis of race or sex.
• Title 5. Though Title 38 generally supersedes Title 5, which covers personnel actions for most federal employees, important rights provided in Title 5 apply to Title 38 employees. For example, Title 38 employees may still bring appeals under the Whistleblower Protection Act and enforce their rights under a collective bargaining agreement.
• Whistleblower Protection Act (WPA).  Courts have ruled that Title 38 employees are protected by the WPA, and employers are prohibited from retaliating against an employee who engages in protected conduct such as reporting fraud, waste, abuse, and gross mismanagement at their agency.
• Administrative Procedures Act (APA).  An agency action will be set aside under the APA if the court concludes that the regulation is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.

What experience does The Employment Law Group® law firm have with representing Title 38 employees?  Back to Top.

The Employment Law Group® is one of the few law firms to regularly seek and obtain injunctive relief, prohibiting the agency from firing or taking any other adverse personnel action against Title 38 employees.

What should I do if I am being treated unfairly at work? Back to Top.

Title 38 and the regulations, rules, and policies created under it can be confusing. From contesting an adverse personnel action to applying for medical staff reappointment before a Professional Standards Board, effectively asserting your rights under Title 38 can require a detailed understanding of the law. Processes often move quickly and in more than one jurisdiction.

With consequences that can reach far beyond your current appointment, knowing and asserting your rights may be critical to your career. The Employment Law Group® law firm is experienced at navigating this complex area of law and achieving justice for VHA employees. If you feel you are being treated unfairly, contact the attorneys at The Employment Law Group® today by phone at (888)603-0983 or by email at inquiry@employmentlawgroup.com.