Easy Termination of Probationary Employees
As predicted several weeks ago, federal employees still serving in a probationary period are a prime target for removal during a downsizing of the federal government. Reality has hit hard, for some of these employees who have been quickly terminated are now out of a job.
A federal government probationary employee is often, but not always, a new federal employee. The probationary period means each individual is going through an evaluation period. This usually lasts for one year. Sometimes, a probationary period can last for up to two years.
It is the final step in the hiring process. The purpose is to assess an employee’s performance, conduct, and suitability for permanent federal employment. It is a period for supervisors to determine whether the employee will successfully perform the job requirements before receiving the employment protection process given to career federal employees.
This means it is easier to fire a probationary employee than a regular career federal employee. Usually, it is much easier. Probationary employees are obvious targets for quickly downsizing the federal workforce. That is probably why OPM recently requested information from agencies on how many probationary federal employees were employed in each agency and required a quick turnaround time for a response.
It is also why FedSmith predicted this was a logical path for OPM to proceed and why FedSmith published this video prior to the expiration of the deferred resignation period being offered by the Office of Personnel Management (OPM).
Why Is This Different, and Will It Impact the Outcome of Appeals?
Agencies will sometimes tell supervisors that if they have questions about how valuable an employee will be, be sure to terminate that employee during the probationary period. When full employment protection is conferred, the removal process is longer, more challenging, and more time-consuming, and the appeals process may drag on for a year or even for a few years.
But, while probationary employees are often easily terminated, the current situation is different. Thousands of probationary employees are being terminated quickly to downsize or restructure the federal government.
The recent mass terminations of probationary federal employees have sparked significant legal challenges, with thousands alleging their dismissals were illegal and unfair. While little is said or published when a few probationary employees are terminated, it is different when thousands are removed quickly. Federal employee unions are up in arms and facing the possibility of thousands of their dues-paying members leaving federal service.
There are also many lawyers around, and the publicity surrounding the downsizing of a percentage of the federal workforce is an event too big to miss. A few thousand people losing their jobs in a short period by a large employer with deep pockets screams “class-action lawsuit” loud and clear to anyone paying attention.
Status of Probationary Employees in an Agency
If an employee’s performance or conduct is not satisfactory, the agency must still provide written notice explaining the reasons for termination and the effective date.
The difference for probationary employees is that they are generally restricted from appealing their termination to the Merit Systems Protection Board (MSPB). A probationary employee can file a complaint alleging discrimination, contending the removal was based on marital status, political affiliation, or improper retaliation. The employee can also file an Equal Employment Opportunity (EEO) complaint for unlawful discrimination.
So, while the government has not precluded all appeal processes, these appeals are restricted. The usual requirements for firing an employee include more time for an advance written notice, time limits for issuing a final notice or decision of the agency to the employee after reviewing any submissions the employee has submitted arguing why removal is unfounded, and an appeal to the MSPB on the merits of the case do not apply to a probationary employee.
A federal agency has broad discretion during the probationary period to assess whether the employee is fit for continued service, and terminations are not subject to the same procedural safeguards as for career employees as outlined above.
With that in mind, here is an overview.
Appeal Rights of Probationary Employees
As noted, probationary employees have less protection than career employees. Their appeal rights are limited to specific circumstances, such as terminations based on partisan political reasons, marital status, or procedural violations if the termination was related to pre-appointment conditions.
Probationary employees cannot usually appeal a termination directly to the MSPB. There are exceptions for preference-eligible veterans or those with prior continuous federal service who meet specific criteria under the Civil Service Reform Act.
Employees alleging a prohibited personnel practice has occurred—such as a termination violating merit system principles—can file complaints with the Office of Special Counsel (OSC). If the OSC finds merit in the claims, it can request a stay of the personnel actions and refer cases to the Merit Systems Protection Board (MSPB) for corrective action.
These appeals seem unlikely in most of the current cases.
What Happens Next?
The Civil Service Reform Act of 1978 (CSRA) was designed to make it easier to fire a federal employee for poor performance. It passed with the strong support of President Jimmy Carter and the AFGE National President. The law ultimately failed to make it easier to fire a federal employee.
Over time, the process became worn down with performance improvement plans (a PIP), lengthy critical elements, poorly written or complex performance standards, and various requirements in collective bargaining agreements or MSPB decisions.
Many supervisors decided it was easier to issue similar performance ratings. There were fewer grievances and appeals, less time spent in hearings and working with lawyers and human resource specialists writing briefs, or working with a recalcitrant employee who could not or did not want to do the work. Not firing an incompetent employee was cheaper, easier, less work, and guaranteed a better night of sleep.
Probationary employees do not go through many of the usual procedures such as a performance improvement plan. Most of those terminated may have never seen one or been subjected to one.
Some of the arguments reported by probationary employees are that they were given exceptional or satisfactory performance reviews. Their termination notice cited poor performance in one form or another.
This is often the type of argument that would go to the MSPB for resolution by a career federal employee no longer in a probationary role. This type of appeal is not available to a probationary employee. That does not preclude an effort to use the argument for possible reinstatement but makes it less likely to be accepted.
Questions to Be Resolved
So, after a relatively short time in federal service, and without any prior warning, Uncle Sam has laid off thousands of probationary employees. Can they appeal to the MSPB? Can they go directly into court? Can they go to court after going through the MSPB where they are not allowed to appeal when they are removed as a probationary employee? Will the unions be required to go to the Federal Labor Relations Authority when they challenge the government’s actions?
A career employee filing with the MSPB and arguing no advance notice of poor performance and no change of improvement would, to be successful, present evidence of satisfactory performance. The agency would present evidence of poor performance.
That is unlikely to happen with thousands of appeals. It is outside their right to appeal the action.
A class action lawsuit will likely go into court and bypass the MSPB. A court is also not going to evaluate the performance of a large number of former federal employees.
Some of the employees (or their lawyers) will argue the removal was done to avoid a reduction in force (RIF), which has its own procedures to follow. It is a time-consuming, complex process with bump and retreat rights, and probationary employees would likely still be terminated.
An initial court decision would be appealed, and if a decision other than letting the removals stand is issued, the case could eventually go to the Supreme Court. That would take months, and the employees may still be unemployed, collecting unemployment benefits, or have found another job equal to or better than their federal job.
Initial Decisions on Restructuring the Size of Government
As this article was being written, a judge for the District Court of the District of Columbia wrote in a similar case involving the firing of probationary employees, union dues, and the government’s deferred resignation program:
Federal district judges are duty-bound to decide legal issues based on even-handed application of law and precedent—no matter the identity of the litigants or, regrettably at times, the consequences of their rulings for average people.
The claims must instead be brought before the Federal Labor Relations Authority (FLRA), which handles wrongful termination and employee disputes under the Federal Service Labor-Management Relations Statute.
A similar decision was issued by another district court judge on a case brought by several employee unions on the deferred resignation program.
Other cases have been filed in various jurisdictions. These will often involve different arguments and some different issues. In all of these cases, the restrictions in the Civil Service Reform Act of 1978 and its restrictions on filing appeals will be considered. These restrictions will have to be considered and will limit the findings of the court.
Summary
Optimistic estimates of how these cases will ultimately be resolved are probably self-serving. As in the quote above, a court may sympathize with the outcome but still uphold the process and how it was implemented. That would be less disruptive to the federal government’s operation and within the established federal process for removing probationary employees or union arguments over how its rights were violated.
The Department of Justice lawyers will do their best to make this argument.
Cases in which probationary employees have been reinstated usually involve finding the limited restrictions outlined above were violated. Removing this many probationary employees is unique. The probationary period was not created for this purpose. It has been used for this purpose because it exists and enabled the federal government to meet its objectives. It was quicker, easier, and probably less disruptive for the government than other alternatives.
Initial decisions in different circuits may vary, making it likely for these cases to proceed through the appeals system. The reality is we will have to wait and see what happens as a result of reviews in our legal system with the varying arguments and situations that are now being made.
The honest answer is that no one knows with certainty how all of these cases will finally be resolved.
