It is a common belief that federal employees are difficult to fire after they are hired. In fact, job security is often cited as one of the most important benefits of being a federal employee. As seen from the perspective of some working for private companies, you can botch the job but keep getting paid if you are a federal employee but you will get fired much quicker when working with a private company.
Congress intended to have a major exception to the stereotypical image to the difficulty of firing a federal employee. A new civil servant working for Uncle Sam is on "probation" for the first year. This probationary period is supposed to be the final step in the examining process with very limited appeal rights if an agency decides this newbie just can’t meet the requirements of the job.
Previously, the Merit Systems Protection Board has told agencies to be more aggressive in using the probationary period to get rid of a new federal employee who isn’t up to doing a good job (or just is not interested in doing a good job). (See "A Federal Job is a Career for Life")
And, said the MSPB in an earlier report, in many agencies, the agency treats a probationary employee just as if he was a federal employee who had been working for the agency for more than one year. Some agencies still require the supervisor to jump through the hoops that would be necessary for a longer term employee. One result of this is that the MSPB study revealed that supervisors often had no intent to get rid of a probationary employee who does not work out. Even in situations in which the supervisor indicated she would not hire the employee again, there was no intent to get rid off the employee during the trial period.
That report seemed pretty clear. The message to federal agencies was to use the tools available to get rid of losers you recently hired because it will take a ton of time and money to get rid of them later–or agencies will just pay them to continue to be losers for the next 20 or 30 years while they are collecting a paycheck from Uncle Sam.
To add to the confusion though, a new MSPB report has come out that has some words of wisdom for agencies that may leave supervisors scratching their head as to what they are supposed to do. Here is a quote from the latest MSPB report:
"[A]gencies must now proceed with caution when terminating a probationary employee because the cost of violating an employee’s pre-termination procedural rights, even inadvertently, may be quite high. Agencies may ultimately be ordered, if an appeal is filed with the Board or the Federal Circuit, to treat them as employees with finalized appointments and return them to their positions with back pay and benefits."
The MSPB cites two court cases that have complicated the job of determining whether an employee is a "probationary" employee without the normal appeal rights.
(1) The prior service is “current continuous service;”
(2) the current continuous service is
in the “same or similar positions” for purposes of non-preference eligibles in the excepted
(3) the total amount of such service meets the 1 or 2-year requirement."