Update: The MSPB granted OSC’s stay request.
The Office of Special Counsel (OSC) has requested that the Merit Systems Protection Board (MSPB) issue a stay, or pause, on the Trump administration’s terminations of six probationary federal employees. The agency says it believes that these terminations are not permissible on the grounds that they violated prohibited personnel practices.
While the stay request was for six employees, it potentially has implications for thousands of federal employees who were recently fired during their probationary periods.
According to a redacted case file of one of the stay requests published by OSC, the agency requested a 45-day stay of probationary terminations by several federal agencies, including the Department of Veterans Affairs (VA).
OSC alleges that these terminations, which occurred simultaneously with a broader workforce reduction effort, violated federal laws and regulations governing probationary employees. OSC argues that the agencies failed to follow proper procedures for terminating probationary employees or initiating reductions in force (RIFs).
The terminations, citing “efficiency” and “public interest,” are challenged for violating merit system principles, including fair treatment and selection based on ability. OSC argues the terminations, impacting over 1,000 employees, warrant a stay due to potential violations of federal laws and regulations.
Agencies are accused of improperly terminating probationary employees during a reorganization, violating RIF regulations. The evidence suggests that the terminations were part of a larger effort to reduce government workforce and costs, requiring RIF procedures. Failing to follow these procedures deprived employees of substantive and procedural rights, potentially resulting in unfair dismissal.
OSC states in its stay request:
Because 1) agencies are prohibited from circumventing the requirements set forth in the RIF statute and regulations, which apply equally to probationary employees, 2) the evidence indicates that Agencies improperly terminated Complainants without reference to those requirements, and 3) the violation denied Complainants both substantive and procedural rights, OSC has reasonable grounds to conclude that Agencies have engaged in prohibited personnel practices.
The stay was therefore requested to allow for further proper review and remedy of these potential violations. It also aims to minimize adverse consequences for the terminated employees, including loss of pay, benefits, and career.
OSC wrote in the stay request to the MSPB:
In accordance with its legal responsibility to safeguard the merit system, OSC seeks this stay because the probationary terminations at issue in this matter appear to have been effectuated in a manner inconsistent with federal personnel laws. In most cases, probationary employees in the competitive service may only be terminated if their performance or conduct demonstrates that they are unfit for federal employment. If agencies wish to terminate probationary employees not for performance or conduct, but as part of a general restructuring or downsizing, they must initiate a reduction in force (RIF) and follow the relevant procedures for that process.
OSC said that it does not normally comment on stay requests while they are awaiting a decision by the MSPB, but it has now done so in this case because the stay requests are now being publicly discussed by one of the agencies listed as a respondent.
OSC Special Counsel Hampton Dellinger said in the statement:
Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance.
Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC “shall” protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws.
In a revised statement issued after MSPB granted the stay request, Dellinger said:
I am very grateful the MSPB has agreed to postpone these six terminations. These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done. Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.
