Last week, I received an email from one of the young people I met when I was still working for the Federal government. Unfortunately, they had been put on notice that because they were a probationary employee, a termination notice would be forthcoming, and there would be no notice and very limited avenue for appeal.
Because this person had been a government employee for some time, it made me wonder if they were really a probationer or, if they were someone that met the definition of an employee, with appeal rights. I also suggested that the former colleague might want to do their own research and reach out to their human resources office to have a discussion based on their research, to determine if they meet the definition of an employee, with appeal rights or, have appeal rights based on the narrow confines provided to probationary employees (e.g. marital status, partisan political reasons).
A few weeks ago, the Office of Personnel Management required agencies across the government to provide lists of employees hired within the past two years. After compiling the lists, the Administration put out guidance to executive agencies to terminate probationary employees.
That edict, in and of itself, seems, at a minimum to be outside the bounds of normalcy, if not contrary to the intent of the law. In looking around for information to assist this former colleague with their research, I came across a couple of documents from the Office of Personnel Management (OPM) and Merit Systems Protection Board (MSPB) that were informative.
OPM states that “the probationary period is the final stage of the hiring process for employees in the competitive service. In most cases, agencies can swiftly terminate probationers who have not demonstrated their fitness for continued employment.”
Several years ago, MSPB conducted a study on the use of probationary periods, The Probationary Period: A Critical Assessment Opportunity. The study stated, “Until the probationary period has been completed, a probationer is still an applicant for an appointment, with the burden to demonstrate why it is in the public interest for the Government to finalize an appointment to the civil service for this particular individual.”
As for the intent of Congress, the law provides that the agency shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment (5 CFR § 315.803(b).
In 5 CFR § 315.804 (Termination of Probationers for Unsatisfactory Performance or Conduct), it states:
Subject to § 315.803(b), when an agency decides to terminate an employee serving in a probationary or trial period because of work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.
Based on what I’ve seen in the law, and OPM and MSPB guidance, it would seem to suggest that even for a probationary employee, there must be an individualized assessment of the employee’s fitness or qualification for continued employment. If that is the case, it makes me wonder if a proclamation from the Administration to terminate probationary employees meets those criteria, and if not, does the announcement, under the pretense of guidance, provide probationary employees an avenue for an appeal.
Ed Davis recently retired for the Federal government to pursue other endeavors in the private-sector. He has over 20 years in federal-sector human resources in a number of agencies, with a majority of his two decades of experience in labor and employee relations.
