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Federal Employment Law
Title 38 Veterans Affairs Employees

The Department of Veterans Affairs (VA) is an agency of the federal government.

This means that all veterans affairs employees are, strictly speaking, employees of the federal government. 

However, unlike employees in other departments, such as the Department of Defense or the Department of Energy, many VA employees fall under two unique personnel systems that distinguish them from other federal employees.

These systems are referred to as “Title 38” and “Hybrid Title 38.”

VA employees under these federal code titles lack most of the benefits and privileges that most other federal employees enjoy but do have other rights unique to them.

These differences can have a tremendous impact on your work schedule, pay, leave amount, and appeal rights. 

Are VA Employees Federal Employees?

Yes and no. VA employees are federal employees in the sense that they work for the federal government.

Virtually all employees of the federal government are covered by Title 5 of the United States Code, as are many VA employees.

Title 5 defines all the distinctive benefits of federal employment, including the General Schedule (GS) and Executive Schedule (ES) pay scales, working conditions, and holidays.

Although some VA employees, generally those in medical positions, work for a federal agency, many of them do not work in Title 5 positions.

Instead, the VA has its own unique hiring system for medical professionals called Title 38.

To give you a better sense of how this applies, it makes sense to run over the differences between Title 38 and Title 5.

Title 38 vs. Title 5: Similarities and Differences 

Under Title 38, all employees must serve a two-year probationary period. Title 5 employees, on the other hand, need to serve only a one-year probationary period at the VA.

Title 38 employees also possess a distinctive pay schedule compared to Title 5 employees.

Unlike Title 5 employees, different Title 38 professions receive different pay ranges. The basic pay of some Title 38 employees (like nurses and chiropractors) is roughly comparable to their GS colleagues.

But Title 38 physicians and dentists can earn far more than their Title 5 peers.

For instance, a VA staff physician can earn up to $243,000, whereas Title 5 employees can earn no more than 176,300 under 2022 pay limits.

That fact aside, both Title 38 and Title 5 receive locality pay to compensate them for the different standards of living that exist across the country. 

One significant difference between Title 38 and Title 5 employees is their respective work schedules. Almost all Title 5 employees work a normal 40-hour workweek.

And like private sector counterparts, Title 5 employees work between roughly 9 AM to 5 PM Monday through Friday.

But many Title 38 employees— like dentists, physicians, optometrists, and chiropractors—need to be available 24/7.

Both Title 38 and Title 5 positions can be full-time, part-time, intermittent, and temporary.

Finally, Title 38 employees generally do not have the right to appeal an adverse employment action to the Merit Systems Protection Board (MSPB) like Title 5 employees.

They do, however, have appeal rights through a hearing before the Disciplinary Appeals Board (DAB). 

Do All VA Positions Under Title 38?

Not at all. Title 38 primarily applies to professional medical positions in the VA, including registered nurses (RNs), physician assistants (PAs), and optometrists.

To receive an appointment, Title 38 applicants must first have their qualifications reviewed by their peers via a Professional Standards Board (PSB).

Assuming the PSB finds the applicant has the necessary qualifications for the role, a designated management official approves the appointment. 

On the other hand, Title 5 covers almost all VA employees in nonmedical occupations. These Examples include program analysts, human resources specialists, police officers, and attorneys. 

Hybrid Title 38 Employees

To make things even more complicated, some VA employees fall under Title 38 for some purposes and under Title 5 for other aspects of employment.

The VA refers to these employees as “Hybrid Title 38” employees.

Hybrid Title 38 occupations include:

  • Respiratory therapists,
  • Vocational nurses,
  • Psychologists,
  • Occupational therapists, and
  • Pharmacists.

Hybrid Title 38 employees fall under Title 38 for matters like appointment, promotion, and some pay matters.

Yet they are categorized under Title 5 when it comes to things like performance appraisals, leave, work schedule, and retirement benefits.

And like Title 5 employees, hybrid employees serve one-year probationary periods.

If you want to learn more about hybrid employees, it’s best to contact a qualified federal employment or veterans affairs attorney. 

Who Do Department of Veteran Affairs Employees Report to?

Whether they fall under Title 5 or Title 38, VA employees report to their designated supervisors.

But as mentioned before, employees who are Title 5 can expect to see more involvement from their peers when they join the VA or apply for a promotion.  

Do You Want to Know More About Your Rights as a Title 5 or Title 38 Veterans Affairs Employee? Give Us a Call Today. 

Regardless of whether you are a Title 5, Title 38 or Hybrid Title 38 employee, you have rights. And those rights deserve to be defended.

If you think your agency has violated your rights, you need to contact an experienced attorney right away.

However, it is vital you search for an attorney that specializes in federal employment and VA matters.

You should also look for an attorney with a track record of success and positive client reviews. 

Our capable federal employment attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC have all those qualities.

We have decades of collective experience representing federal employees and defending their rights.

Regardless of your situation, personnel system, or occupation, we believe that you deserve outstanding legal representation.

Our firm has obtained amazing results for our clients, and they are more than happy to discuss the differences we’ve made in their lives. Don’t wait another moment.

Pick up the phone today and call us at 866-612-5956. You can also reach out online to set up an appointment.

Author Photo

Aaron Wersing, Attorney at Law

Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a consultation, please call him at (833) 833-3529.

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