Bill Would Expand Probationary Period for Federal Employees

A bill introduced in the House late last week would extend the length of the probationary period for new federal employees.

Currently, a federal employee’s first appointment is usually accompanied by a one-year probationary or trial period. The purpose of this is an extension of the hiring process to ensure that the federal government is hiring people who will be useful in doing the work required by an agency.

When the probationary period is used properly, it gives a federal manager an effective tool to ensure a new employee is productive. If the newly hired employee is not satisfactory, the employee can generally be fired without appeal rights.

HR 1470,  sponsored by Rep. Dennis Ross, R-Fla., would extend the probationary period for new federal employees from one year to two. In addition, the bill would prohibit a federal employee who is transferred, promoted, demoted or reassigned to a new position from counting previous service toward the two-year probationary requirements of a new job.

As with most issues in the federal government human resources program, use and execution of the probationary period is not as cut and dried as may have been intended. Litigation about who is an employee, for example, or under what circumstances a federal employee is subject to a probationary period pop up, usually when an agency is removed an employee under the probationary period provision that does not envision the use of an extensive appeal process. With regard to the current system for using the probationary period, the Merit Systems Protection Board had these words of wisdom for federal agencies in a special 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 also had this warning for federal agencies:

“No longer may an agency assume that an employee does not have such rights simply because the employee is serving a probationary or trial period. Instead, in assessing when a probationer will acquire such rights, agencies must take into account such factors as whether:

(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 service; and

(3) the total amount of such service meets the 1 or 2-year requirement.”

The MSPB report demonstrated that some (perhaps many) federal supervisors did not use the probationary period to fire a new employee who was not getting the job done. That may be due to an agency imposing more strenuous requirements on the supervisor than was required by law; it may have been due to confusion on the part of the supervisor as to any appeal rights the employee may have had; it may have been that the supervisor does not want to go through the tension and unpleasantness of firing an incompetent employee even if doing so is relatively easy during the probationary period.

Most managers would probably prefer a longer probationary period as it would give more time to evaluate an employee and initiate a removal action if that is justified. As the MSPB report indicated, action is frequently not taken when it is relatively easy to do so and the result can be that an employee who may not be an effective contributor to an agency’s work remains as an employee for a long time, sometimes filing appeals that can go on for years.

Unions generally prefer a shorter probationary period and unions objected to a two year probationary period that was used in the Federal Career Intern hiring program (that the unions generally did not like either).

The bill has been referred to the House Committee on Oversight and Government Reform of which Congressman Ross is a member.

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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