Firing a Fed May Be Harder Than Ever

Firing a probationary employee may not be as easy as it once was. Who qualifies as a probationary employee? The MSPB says there is confusion in the bureaucracy and would like to see it cleared up.

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.

"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 says that current government regulations regarding the firing of a probationary employee are no longer accurate based on these court decisions. The Board recommends that OPM update its regulations. It also recommends that agencies obtain a waiver of appeal rights in some cases to "relieve agencies of the procedural and legal burdens associated with terminating an employee…."

The situation could also be resolved if Congress would review and amend the current statute to clear up the confusion and clarify the original Congressional intent.

The confusion, or the new requirements if you prefer, do not impact all new federal employees. The procedural appeal rights most likely to be affected are for federal workers with appointments in the excepted service pending conversion to the competitive service. Such appointments may include those in the Student Career Employment Program, FCIP, Presidential Management Fellows Program, and the Veterans Recruitment Authority.

As noted in the previous MSPB report earlier in this article, 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 relatiavely easy.

The reality is that the employee may collect a paycheck and a pension for the rest of her life with money from the federal budget; it often will not have a lasting impact on the supervisor of the employee during the trial period. In other words, the potential gain for the supervisor is not worth the potential pain of taking action.

Many supervisors, probably most, are not going to want to call the agency’s legal office to go through the meetings and time necessary to decide if a problem employee is really on probation. It will be easier to keep a loser on the payroll and hope the person transfers to another office (or the supervisor is now eligible to retire so it will not be his problem for long anyway.) The additional confusion added by the courts will add to the uncertainty. No doubt, the number of probationary employees who should be terminated will go down. That cannot be good news for the efficiency and effectiveness of the federal workforce.

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. Follow Ralph on Twitter: @RalphSmith47