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Federal Employment Law
Title 38 and Hybrid Title 38 Employee Overview

Title 5 of the United States Code covers virtually all federal government employees. However, a few employees fall under Title 38 of the U.S. Code.

Title 38 and hybrid Title 38 employees receive unique rights in the federal government.

Both categories of employees work in the Veterans Administration and the National Institutes of Health (NIH) and have different working conditions and pay scales.

Title 38 employees work in various medical professions, while hybrid title 38 employees occupy medical and scientific roles. 

Here, we’ll review the rights and working conditions of Title 38 employees and hybrid Title 38 employees.

We will also touch on the process for appealing disciplinary action. For more specific questions relating to Title 38 and hybrid Title 38 employees, call a title 38 lawyer today. 

Title 38 Employees: Characteristics and Examples 

Title 5 defines all the main characteristics of federal employees. It controls things like working hours, overtime provisions, and pay scales.

Because Title 38 employees obviously aren’t covered by Title 5, their working conditions are significantly different.

Whereas Title 5 employees work during regular business hours, many Title 38 employees regularly work weekends or are on call 24/7.

Title 5 employees receive pay under either the General Schedule (GS) or Executive Schedule (ES) pay systems, while Title 38 employees have several different pay scales that allow for significantly higher salaries.

For instance, GS employees have a pay cap equal to the Executive Schedule level IV, which was $176,300 in 2022. In contrast, Title 38 physicians can make up to $385,000.

However, Title 38 employees do not receive the same benefits as Title 5 employees when it comes to disciplinary matters.

While Title 38 employees can file Equal Employment Opportunity (EEO) complaints, they cannot appeal disciplinary actions to the Merit Systems Protection Board (MSPB).

This means that employers like the VA have significantly greater discretion when it comes to disciplining their employees.

Finally, Title 38 employees must serve a two-year probationary period. Title 5 employees need only serve a one-year probationary period. 

How Do I Know If I Am a Title 38 Employee?

Not all VA and NIH employees fall under Title 38. The best way to determine if you are a Title 38 employee is by assessing your profession. The following professions are covered by Title 38:

  • Registered nurses
  • Oral surgeons
  • Dentists
  • Hospital Chiefs of Staff
  • Chiropractors
  • Podiatrists
  • Physicians
  • Physician assistants
  • Optometrists

This is not an exhaustive list. If you have specific questions about whether your profession falls under Title 38, contact a competent Title 38 attorney today.

How is a Hybrid Title 38 Employee Different from a Title 38 Employee?

Some professions within the VA and NIH have employees that do not fall under one title of the U.S. Code. Instead, these professions split their employees between Title 5 and Title 38.

These professions are called “mixed” or hybrid Title 38 employee professions. Hybrid Title 38 professions include:

  • Physicists
  • Dental hygienists 
  • Professional mental health counselors 
  • Biologists
  • Physical therapists
  • Chemists
  • Pharmacists
  • Occupational therapists
  • Marriage therapists
  • Dental assistants
  • Dietitians
  • Biomedical engineers

Again, this is not an exhaustive list. That said, if you work for the VA or NIH in one of these fields, you might be a Title 38 or Title 5 employee.

The best way to know which title governs your position is by consulting your agency’s human resources department or by contacting a federal employment attorney. 

What Rights Do Title 38 Employees Have?

Regardless of whether they are in “pure” Title 38 professions or “hybrid” Title 38 professions, employees under Title 38 enjoy the same rights.

While Title 38 employees cannot appeal disciplinary actions to the MSPB, they receive protections from the following laws: 

  • Rehabilitation Act of 1973. The Rehabilitation Act prohibits employers from discriminating against employees with disabilities.
  • The Americans with Disabilities Act (ADA). The ADA requires employers to provide reasonable accommodations to Title 38 employees with disabilities. 
  • Title VII of the Civil Rights Act of 1964. Title VII outlaws discrimination against any federal employee because of their national origin, religious beliefs, color, gender, sex, or race. 
  • The Whistleblower Protection Act (WPA). The WPA prohibits federal agencies (including the VA and NIH) from retaliating against employees who report wrongdoing.

 Title 38 employees may also dispute disciplinary actions in Administrative Investigation Boards (AIBs). During these hearings, they may be represented. 

Want to Learn More About Title 38 and Hybrid Title 38 Employees? 

Do you have more questions about your rights as a Title 38 employee? Are you looking for quality legal representation to help you defend your career in AIB? Whatever your situation, we can help.

The lawyers at the Law Office of Aaron D. Wersing, PLLC, have many years of experience with both Title 5 and Title 38 employees.

We have helped countless civil servants protect their careers, hold bad actors accountable, and obtain the benefits they deserve.

Also, we’ve practiced in every kind of federal forum, including AIBs, the MSPB, the EEOC, and federal district court.

We are passionate about defending your rights and hope to provide you with outstanding customer service. 

Still unsure about whether you need to hire an attorney? Don’t worry.

You can contact us at 1-866-612-5956 or reach out online to get started. 

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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