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Federal Employment Law
who are title 38 employees

Title 38 employees are in a unique position compared to other civil servants. If you’re a healthcare professional at the Veterans Administration (VA) or the National Institute for Health (NIH), your rights and obligations as a federal employee may differ significantly from those of your coworkers. 

So, what is a Title 38 federal employee? This blog post will shed some light on this particular employee category for medical professionals. We’ll examine how Title 38 status impacts your benefits, compensation, and protections as an employee.

What Is a Title 38 Federal Employee?

Put simply, Title 38 employees are a special category of workers not covered by Title 5 of the U.S. Code, the primary law governing federal employment. Title 5 outlines most federal workers’s standard working conditions, pay scales, benefits, and holidays. 

However, certain VA or NIH medical professionals are regulated by a different part of the U.S. Code, Title 38. 

What Is Title 38 in the Federal Government?

Title 38 is a portion of U.S. law governing the benefits provided to military veterans by the VA. It outlines the rules for administering disability compensation, pensions, educational assistance, employment, and other rights and services veterans are entitled to.

Since it regulates healthcare, Title 38 also sets the standards and benefits for certain specialized medical professionals employed through the VA.

Who Are Title 38 Employees?

Title 38 employees are healthcare providers who work for the VA or the NIHealth. Some medical professionals who fall under Title 38 include:

  • Physicians, 
  • Physician assistants,
  • Dentists,
  • Oral surgeons, 
  • Chiropractors, 
  • Podiatrists,
  • Optometrists, and
  • Registered nurses.

However, not all health professionals at the VA or NIH are Title 38 employees. Some may fall into a special category involving a mix of Title 38 and Title 5 policies. Providers who often fall into this hybrid Title 38 category include dental hygienists and assistants, mental health counselors, pharmacists, physical and occupational therapists, and dietitians. 

Be aware these aren’t definitive lists. Many other types of medical professionals may also fall into either of these categories. The best way to know what type of employee you are is to talk to your Human Resources department or consult a federal employment attorney.

What Makes Title 38 Federal Employees Different?

Title 38 workers face several different rules and procedures as employees compared to their Title 5 counterparts. Here are some of the significant unique features of Title 38 employment status.

Non-Standard Working Hours

Under Title 5, most federal employees work during regular business hours from Monday–Friday. However, it’s common for medical professionals under Title 38 to be available 24/7 for work, even on weekends.

Different Pay Scale

Salaries for Title 5 employees follow one of two pay scales: the General Schedule (GS) or the Executive Schedule (ES). However, Title 38 allows the federal government to use a different—and often more competitive—pay structure to recruit and retain qualified medical professionals. 

Longer Probationary Period

Your two years of work as a Title 38 employee are treated as a probationary period to ensure you meet the high standards for clinical competency and patient care expected by the VA and NIH. For Title 5 employees, this probationary period only lasts one year. 

Complex, Administrative Appeals Process 

Unlike most federal workers, Title 38 employees can’t appeal adverse or unjust employment decisions to the standard Merit Systems Protection Board. Instead, they have to take their appeal through a Disciplinary Appeal Board—run by their employer.

Because the VA has discretion over these appeals, overturning a disciplinary action can be more challenging for employees.

What Rights Do Title 38 Federal Employees Have?

Despite the differences between Title 38 and Title 5 status, Title 38 employees still receive important protections under federal law. Some of the rights that Title 38 employees enjoy include:

  • The right to a work environment free of discrimination or harassment based on race, religion, sex, disability, and national origin;
  • The right to receive reasonable workplace accommodations for physical or mental disabilities;
  • The right for employees over 40 to work free from age discrimination; and
  • The right to report wrongdoing in the workplace without facing employer retaliation.

Although Title 38 employees face unique challenges appealing an employer’s decision, they can contest disciplinary actions, including suspension, pay reduction, license revocation, and termination. Importantly, you also have the right to legal representation in hearings where disciplinary actions are at issue.

Dedicated Experts for All Federal Employment Concerns

At the Federal Employment Law Firm of Aaron D. Wersing, we know firsthand how challenging it is to make sense of your rights as a civil servant and medical professional. Generic advice from HR or attorneys without experience in federal employment law won’t cut it.

For a clear understanding of what your Title 38 status means, it’s essential to contact a qualified federal employment attorney. Our law firm proudly represents medical professionals serving in the federal healthcare system.

Our team has years of experience guiding federal workers through various complex employment disputes, from unlawful license revocation to hostile work environments. To learn more about how we can help you, contact our office online or by phone.

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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