Reports that the Trump Administration seeks to fire all probationary employees across the federal government are alarming. And while it is true that federal employees in their probationary periods have far fewer rights against sudden termination than non-probationary employees who have been with the government for more than a year or two, probationary employees do have rights and need to know what they are.
First, you must determine if you are a probationary (called a trial period in the excepted service) employee.
- If you started a new job in the federal government in the past year, it is possible that you are probationary. For most career and career-conditional competitive service employees, as well as career SES employees, the probationary period is one year. Probation at the Department of Defense, however, is typically two years.
- Prior federal civilian service counts toward completion of the one-year period if it 1) is in the same agency; 2) is in the same line of work; and 3) does not involve more than a single break in service of 30 days or less. (There are a few nuances for part-time employees and those on leave.)
- New supervisors are required to serve a probationary period set by their agency. If a supervisor’s position is their initial appointment, they can be separated without due process (subject to those exceptions noted in this post). However, if the new supervisor earlier passed probation, they must serve a supervisory probationary period, which is different. Specifically, if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to their previous, non-supervisory position or its equivalent. This does not give the agency a right to remove the supervisor, who has already successfully completed their probationary period, from service without due process.
- For most employees in the excepted service, including those hired under Schedule A authority, the probationary period is two years of continuous service in the excepted service before appeal rights attach.
- Because there are exceptions to these general statements, check your on-boarding SF-50 in your eOPF, which usually states clearly at the bottom (1) whether your position is subject to a probationary period; (2) how long the probationary period lasts; and (3) the date when the probationary period begins.
After you’ve determined that you are a probationary employee, what are your rights?
- Probationary employees can be removed quite easily for a number of reasons, and they have very limited appeal rights. 5 U.S.C. § 7511(a)(1)(A)(i). Specifically, employees can be removed for performance or conduct that fails to demonstrate fitness or qualifications for continued employment, or for conditions arising prior to appointment. (Competitive: 5 C.F.R. § 315.804-805; SES: 5 C.F.R. § 359.402-404). However, those on probation do retain some rights.
- If a probationary employee is removed for performance or conduct, they are entitled to be notified in writing of 1) the reasons why they are being terminated and 2) the effective date of the action.
- Such probationers are afforded the right to appeal a removal to the Merit Systems Protection Board only if their removal was based on: (1) partisan political activity; (2) marital status; or (3) reasons that arose before their appointment.
- Probationers removed for conditions arising before appointment are entitled to advance written notice of the reasons, an opportunity to respond, and a written decision. 5 C.F.R. § 315.805(b). They also have appeal rights to the MSPB if they claim that the termination was not effected in accordance with the procedural requirements of 5 C.F.R. § 315.805. 5 C.F.R. § 315.806(c).
- Career SES probationers’ rights depend on the type of removal:
- If removed for performance, they must be notified in writing of their specific performance problems and advised whether they have placement rights.
- If removed for misconduct, they must be notified of the basis for the removal, including any specific acts.
- Note, if a career SES probationer was an employee (as defined by 5 U.S.C. § 7511) immediately before appointment to the SES, they may appeal their removal to the MSPB.
- If removed for conditions arising before appointment, they are entitled to advance notice of the specific reasons, a reasonable time to reply, and a written decision.
- But for the exception noted above, probationary career SES employees may not appeal to the MSPB.
- All probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were removed for discriminatory reasons (race, color, national origin, sex, age, disability, genetic information, religion), and with the U.S. Office of Special Counsel if they believe their removal is a prohibited personnel practice under 5 U.S.C. § 2302.
- Finally, if removed pursuant to a RIF, probationers can appeal to the MSPB challenging whether the RIF complies with the competitive procedures required under 5 U.S.C. § 3593(a). These procedures cover all employees (except for those in the SES or whose appointment is required by Congress). They require Agencies to develop a retention register that takes into account the tenure of employment, veteran preference, length of service, and performance of all employees. Therefore, while probationary employees will rank lower on the retention register than career employees not on probation, it does not follow that a RIF that separates all probationary employees is necessarily lawful.
- Once an employee receives a specific notice of reduction in force, they have the right to inspect the Agency’s retention registers and related records used by the Agency to make its RIF determinations. This can help to determine if the Agency followed the RIF procedures correctly.
- Finally, the regulations provide that employees must receive notice of a RIF at least 60 days before the effective date of release. This deadline may only be shortened if the RIF is caused by circumstances not reasonably foreseeable.