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Revisiting the Probationary Period

Federal Register Notice

Anonymous
Anonymous
Mon Mar 24, 2008 8:30 AM

Post Reply

On May 1, 2007, following the MSPB’s issuance of the reports you discuss, OPM issued proposed rules to change their regulations to comply with the Federal Circuit decisions in VanWersch and McCormick. The finalized regulations from the Federal Register became effective on March 10, 2008 and should be reflected in the 2009 CFR once it is published. In the meantime, the regulations can be found at http://www.opm.gov/cfr/fedregis/.

OPM's new rule

Analyst
MSPB
Mon Mar 24, 2008 9:12 AM

Post Reply

Just to let people know, OPM recently issued final
regulations related to this issue, clarifying the language. The final regs can be located at http://www.opm.gov/cfr/fedregis under the date February 7, 2007.

Huh?

HR professional
cabinet department
Tue Mar 25, 2008 10:24 AM

Post Reply

Excuse me....Mr. Varnak....How can you put yourself out there as a Federal HR consultant, and actually take money from people, if the FIRST you've heard of Van Wersch and McCormick was some FPMI reader commenting (and how come FPMI didn't clue you in before they ran the article)?

I'm a Federal HR professional, making only my Federal salary, and I've known about it and been applying it in my advice to Federal supervisors, at least since McCormick came out in 2002! And I've kept up with the MSPB caselaw on the subject since that decision came out.

It's not hard to keep up on things like that for someone who actually cares, but doesn't have time to read every decision issued: MSPB has a regular summary -- used to be weekly, not less often--published on its web site. Free.

Get to it, Mr. Varnak, or think about refunding the money of those people who paid you, under the assumption that you actually keep up-to-date on Federal HR law.
And FPMI, you should be doing a LOT better.

Re: Huh?

editor
FedSmith.com
Tue Mar 25, 2008 2:14 PM
I am not aware that FPMI had anything to do with the publication of this article.

Re: Huh?

Consultant
Phil Varnak Associates, Inc.
Wed Mar 26, 2008 11:32 AM
Apparently, you did not thoroughly read the article. I was not aware of a "recent MSPB decision from Van Wern" as I stated in the first paragraph. I did not state anywhere that I wasn't aware of the decision regarding Van Wersch. However, as I stated, I was not aware of the two MSPB reports submitted to the President and Congress in 2005 and 2006. The purpose of the article was to bring this to the attention of others who may not have heard of these reports. From the comments received plus other email to me directly, that purpose was apparently achieved for many readers.

A revised CFR was implemented by OPM this month. Those changes deal apparently deal with the some of the issues addressed in the MSPB reports.

Probationary period

Telephone Operator
Department of Veterans Affairs
Tue Mar 25, 2008 2:29 PM

Post Reply

I feel that if someone has put in two or more years of service, they should not be subjected to a probationary period. It is extremely unfair. Isn't a probationary period so you can show you are a good employee? If you have managed to stick around for two or more years as a temp, one of two things is true. either A there is no one willing to take the position, and they are toatlly desperate or you are a very good employee.

Re: Probationary period

Bank regulator
cant say
Wed Mar 26, 2008 10:09 AM
Or a third thing could be true - you are still breathing, and the agency is too lazy to get rid of you. We are hiring more and more contractors for longer contractual periods, apparently because the govt doesn't have to pay their benefits. We have one contractor who was supposed to be here for about six months to transition a new HR person, and two years later, she's still here. Sitting in the break room, reading the newspaper, talking on the phone, roaming the halls and visiting, and generally making us wonder what she ever accomplishes. Says this is the easiest job she's ever had and wants to be made permanent. Gee, I wonder why?

Need translation

Supervisory IT Specialist
DoD Navy
Wed Mar 26, 2008 7:47 AM

Post Reply

Can any HR person translate this? I read it, but not sure I understand. Are they saying that only 1 probationary period is ever required?

I worked for the DoD Army for 10 years, excepted service. I served a 1 year trial period.

I switched to DoD Navy (competitive service) about 1.5 years ago and had to serve another 1 year probationary period. It was a stressful time, since I could have been let go for no reason at all, despite my 10 years of good performance (and appraisals showing it).

I wasn't worried about my performance. I was worried about politics, and possibly getting off on the wrong foot with my new employers. I took extra care to walk on egg shells for the first year.

I think they said I needed anohter probationary period since my last one was a "trial" period under excepted service.

If I switch to another agency will I need to serve yet another probation?

Re: Need translation

HR consultant
been there/done that
Wed Mar 26, 2008 9:00 AM
Technically, the issue here is one of appeal rights rather than probationary periods. Generally speaking, Federal employees moving between Federal agencies without a break in service retain their MSPB appeal rights if they have served an initial probationary period. A new agency can tell the employee that he or she is in a probationary period, but that has little significance if the employee has appeal rights. The whole purpose of a probationary period, of course, is to be able to remove the employee with only limited appeal rights available.

Re: Need translation

No One Special
USDA
Wed Mar 26, 2008 10:09 AM
Switch to another agency - serve another probationary 1 year probationary period. I worked with DOD Army for 15+ years and I served an initial probationary period. I then transferred to the VA and was required to sereve a 1 year probationary period. Same was true when I transferred to USDA. I questioned it with each transfer and was told I would need to serve that 1 year probationary period or not accept the position.

served probation twice

Program Specialist
USACE
Wed Mar 26, 2008 10:37 AM

Post Reply

I am having to serve a one-year probabtion again within the SAME agency after having worked for them for two years (not a temp). I went to a different geographic area (District) within the Corps, hired at the same Grade & Step and have to do another year probation. I had excellent preformance reviews and got an excellent reccomendation from my former District. Doesn't seem to make much sense.

Re: served probation twice

HR consultant
been there/done that
Wed Mar 26, 2008 12:05 PM
As I indicated in my earlier response, the agency is free to say that you are serving another probationary period. However, if you transferred without a break in service from one competitive service position to another, and have previously completed an initial probationary period, you maintain your appeal rights regardless of your "probationary status".

Appeal rights doesn't mean no action

Employee Relations Specialist
V.A.
Fri Mar 28, 2008 9:36 AM

Post Reply

There has been lots of talk on this subject in recent years, but the bottom line for HR folks is never discussed. This leaves confusion ... can agencies even TAKE an action on this type of employee?

From a 2005 MSPB case (Jolivette), this should help:
"The agency terminated the appellant .... The agency informed the appellant that he did not qualify under Title 5 as an "employee" because he was still serving his probationary period. ... The board disagreed and found that the appellant satisfied the Title 5 definition of employee because he had served in similar positions for longer than the required service time. Therefore, the agency failed to provide him with the proper due process protections under Title 5. The appellant was never given an OPPORTUNITY TO RESPOND. The appellant, because of his "employee" status, should have been given the RIGHT TO APPEAL his termination to the board."

Total Comments: 16
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