The Crucial First Year in Federal Employment–A Time For New Approaches

By on November 7, 2010 in Current Events with 14 Comments

When I cover the topic of the new employee probationary period in seminars, I often describe it as “the most elegantly simple program we have in Human Resources.” Unlike many other areas of HR I have encountered, it is elegant in design and simple to use.

The basics

If you have worked in the private sector, you’ve likely experienced a 3-6 month probationary period—assuming employees were offered any job security at all. In most of the federal government, it’s a year. (In some agencies and/or job categories it’s now two years.) That’s a lot of time to make a decision.

Employees seldom serve two probationary years in a Federal career. There are exceptions, but not many. Probation laws/regulations also apply to veterans and their widows. If you have
specific questions, ask a Staffing Specialist in your agency or look at the employee’s Standard Form (SF) 50.

Most state laws rely on the concept known as “employment at will.” In essence, you can quit this job anytime you care to…and we can fire you anytime we please. There is no such thing as an employment contract and no right to job security. For permanent positions in the federal government, employees can only be terminated “for cause”—except probationers.

Deciding every workday… for a year

While Feds often view terminations during the probationary period as a firing the recently-hired employee, I don’t. Probation is part of the hiring process, allowing management up to one year to decide whether the person initially selected is really the person that’s right for the job they are occupying and right for your agency.

We all know that the selection process is fallible. The best resume and interview do not always predict the best person available for that position. Once we observe their interpersonal skills, willingness to accept direction (or work without direction), ability to manage job stress, etc. our impressions of that individual may change for the worse. That’s why management is given up to one year to finalize their initial decision to hire. Every day a probationer comes to work (or doesn’t), the decision to hire can be reaffirmed or reversed.

Picking, but not grinning

In essence, laws, regulations, and case law look upon terminated probationary employees much like rejected (non-selected) applicants. For example, let’s say human resources (HR) refers three
candidates from outside the government who are well qualified for a particular vacancy. Their surnames are Suarez, Sugihara, and Goldfarb—just to make things spicy.

After reviewing the applications/resumes of these three candidates, you decide to interview them. You will be well advised to write down the questions you wish to ask, ask each of them the same questions in the same order—all for EEO purposes. Upon considering all of the information you’ve gleaned, you select Ms. Sugihara. Congratulations, that vacancy is now filled and your overworked staff is getting help.

Now imagine four months have passed. You’ve grown to rue the day you selected Sugihara. She’s argumentative, disrespects the advice given her by you and your team, and presumes to know
things she doesn’t. With your own management’s concurrence, you can terminate her… now. You don’t need a record of discipline or performance reviews to do it. In fact, probation isn’t even mentioned in regulations concerning those programs.

A time for action

Once you’ve contacted HR regarding any negotiated procedures in place, copy what documentation you have (we in human resources are hoping you documented some instances of her
shortcomings along the way) and attach them to a completed form SF-52 or your agency’s equivalent.  HR should take care of the rest—hopefully without delay.

If your Human Resources or Human Capital Office asks for more than what you have in hand, you should ask why. After all, how much evidence was required to select her? Technically, you are
deciding not to select Ms. Sugihara…after four months of working with her.

Why should HR specialists question your judgement now? After all, you’re decision is much better informed than the one you made months ago. What ulterior motive might you have? It is embarrassing to terminate a probationer and often gut-wrenching to put that person out on the street without a job. I assume that you have overcome all your misgivings and made a tough decision.

Any obstacles placed in the supervisor’s path (by HR, EEO, or senior managers) may prove disincentives to needed action. These supervisors should be commended for their courage—not questioned regarding the sufficiency of their reasons. The law allows this user-friendly system for a reason. The best applicants don’t necessarily make the best employees. Probation is your “Get Out Of Jail Free” card. Supervisors and managers should be allowed to use it without getting the third degree from those furthest removed from the scene.

What are the odds?

Terminating during probation is as close to risk-free as adverse personnel actions get. The courts have determined [709 F.2d 724 and 848 F.2d 1273] that a probationer’s termination is not grievable. When you consider the fact that unions don’t represent the grievances of non-selected applicants (Suarez or Goldfarb) from outside government, this makes common sense.

As for the Merit Systems Protection Board (MSPB), they may not hear a probationer’s case unless s/he makes a “good faith allegation: that the termination was based on partisan political reasons or marital status [5 C.F.R.§1201.3(a)(8)]. You read that right…and I would love to know how that made it into the law. The courts have weighed in here as well. Very few probationers have had their cases heard by the MSPB over the past 30 years.

That leaves EEOC. Back when Ms. Sugihara was selected for this job, the other two applicants could have filed discrimination complaints over not being picked ahead of her. She must be afforded the same right. Say she alleges that she was terminated due to her national origin—Polish. (For those of you wondering how Ms. Sugihara could be Polish, wake up and smell the
coffee!) Logic, however, dictates that she must have a pretty persuasive argument to overcome the presumption that her selection and four month tenure show a lack of discriminatory motive.

Of course, if she asked for time off in early March to celebrate St. Casimir’s Day and that tipped the scales for you, EEO considerations may be in play. Sometimes discrimination colors probationary cases, but not very often. In vast majority of cases a legitimate non-discriminatory reason is proven and allegations of pretext are unpersuasive.

So…there’s no chance of a grievance, about a thousand to one chance of even being afforded a hearing by the MSPB, and little chance of an EEOC reversal absent evidence of pretext. Those are odds worth playing. As my colleague Gary Koca has said, “When in doubt, weed them out.”

Simple changes that need to happen

No one aspires to hire the wrong person. Few are willing to admit they did. Failing to terminate the probationer who proves wrong for the job or government service in their first year seems almost
criminal. Subsequent supervisors and managers will likely be stuck with that same person for almost three more decades should a supervisor fail to act in year one. It happens all too often.

Because these decisions are crucial, we in HR should do more to encourage close scrutiny of probationary employees. While most agencies remind supervisors in month nine or ten that the employee is close to completing their probationary year it’s not enough. In many agencies, the supervisor receiving the notice in month 10 may be the 2nd or 3rd for this employee and unprepared to make the decision.

In the 21st century, notices should go out quarterly at a minimum. Every other month would not be excessive in my mind. Three computer-programmed and generated reminders would cost the
government thousands…and save millions. The Office of Personnel Management (OPM) should be encouraging, if not mandating such systems. This idea poses little downside risk and much upside benefit. The only real issue is: When will we see it?

Ask not what you can do for your probationer…

Human Resources should accompany such reminders with a list of criteria that line management should be applying to first-year hires. Relying on performance appraisal criteria is
far too limited a perspective. OPM should develop a comprehensive checklist to assist front-line management in this regard.

This practical step could mark a turning point in how OPM and Federal HR staffs view new employee probation. Rather than having management justify terminating probationers, require them to offer up reasons for retaining them. Signatures from both the 1st and 2nd levels of management should be required each quarter.

Good supervisors and managers are often overwhelmed with work. Paperwork, meetings, special projects and the like often obscure their horizon. Our function in HR is to support supervisors
and managers in making the best decisions for their agency. As concerns probationers, I think we can (again, with the help of OPM) change our practices regarding new employee probation. It’s time we were asking :Why should we keep this person?” instead of “Why should we let them go?”

Stepping up to the plate

With each notice and checklist, HR should be telling management how easy it is to terminate probationers—especially when compared to progressive discipline and performance-based actions. They should be informed that probationers have no grievance rights when terminated (while they can grieve disciplinary actions and performance ratings) and that evidentiary requirements are less important than the willingness to “make the call.”

Human Resources Offices spend thousands of hours helping management narrow the field of applicants to those best qualified—and virtually none to follow up after a selection is made. That defies logic. If selecting the right person for a Federal job is important to your agency, then ensuring it was the right selection once s/he is on the job is even weightier.

Quarterly notices, checklists, and justifications for retention are long overdue. The only question remaining is when the development and implementation such practices will be translated into your Chief Human Capital Officer’s goals and objectives?…and when will OPM look up from the complexities of filling positions in order to see if they were appropriately filled? This fiscal year would be as good a time as any.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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