People ask us:
The attorneys at The Employment Law Group® law firm have helped to win favorable outcomes for Title 38 employees, including injunctive relief that stops adverse action that could affect their licensing: Expunging the files of medical professionals who are unlawfully disciplined, for instance; arranging transfers to protect doctors from workplace retaliation; and negotiating settlements that allow doctors to move freely to other government agencies or to the private sector.
The TELG law firm’s Title 38 attorneys won a rare court order to prevent the U.S. Department of Veterans Affairs (VA) from firing a doctor while her whistleblower complaint was pending. Our attorneys also reversed the suspension of a VA doctor who followed her professional conscience in an emergency room she believed was understaffed.
If you win a claim for discrimination, harassment, or retaliation, you may be entitled to reinstatement, damages to compensate you for the harm to your career, and you may be able to recoup your attorneys’ fees.
As with all legal claims, deadlines are crucial. Deadlines for federal employees are often much shorter than those for private sector employees, with some deadlines as short as 45 days. Do not delay in contacting an attorney if you believe you have suffered wrongdoing.
Frequently Asked Questions
What is a Title 38 Disciplinary Appeals Board?
Title 38 federal employees have different rights than other federal employees. In particular, they generally cannot appeal personnel actions to the Merit Systems Protection Board (MSPB). Instead, remedies are usually more streamlined and leave employers with more discretion to institute adverse employment actions. A Disciplinary Appeals Board is part of the Title 38 remedial scheme, which includes:
- 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.
Which federal employees are appointed under Title 38?
Pure Title 38 employees generally occupy one of the following positions:
- Registered Nurse
- Physician Assistant
- Expanded-function dental Auxiliary
Other federal employees may have rights that are split between Title 38 and Title 5. Such employees 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
- 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
- Pharmacists or pharmacy technicians
- 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.
What other federal laws protect Title 38 employees?
Title 38 employees have a different remedial scheme for personnel actions, but they still are protected from unlawful conduct — including discrimination and retaliation — by other federal statutes. This protection can help to re-balance a personnel dispute. 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.
- The Age Discrimination in Employment Act. The ADEA provides protection from employment discrimination on the basis of age.
- The 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.
- The 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.
- The 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 should I do if I’m a Title 38 employee who’s being treated unfairly at work?
Title 38 and the tangle of 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.
More than most federal employees, Title 38 employees can benefit from legal representation.