The Office of Personnel Management (OPM) has proposed a rule that would narrow appeal rights for probationary federal employees, eliminating Merit Systems Protection Board (MSPB) review and limiting appeals to a small set of procedural and discrimination claims.
What is a Federal Probationary Employee Trial Period?
A probationary period is the final stage of the hiring process for competitive service employees. During this period, an agency is expected to evaluate whether a newly hired employee is suitable for continued federal service before the appointment becomes final. If the employee is not considered to be an acceptable candidate for federal employment, the employee can be removed.
An Executive Order issued earlier this year stated:
The Government Accountability Office has documented, however, that agencies have not been using probationary and trial periods as effectively as they could to remove appointees whose continued employment is not in the public interest. As a result of this failure to remove poor performers, agencies have often retained and given tenure to underperforming employees who should have been screened out during their probationary period.
Given that agencies were not using the probationary period as expected to weed out people who would not make up a high-quality federal workforce, the latest change is a logical extension of the earlier OPM guidance.
In addition to requiring agencies to be more assertive in removing probationary employees who are marginal or unacceptable, the latest statement makes it more difficult for those employees who have been removed to continue working for Uncle Sam.
What Does the New OPM Proposal Change About the Probationary Period?
A central feature of the proposal is the transfer of appeal authority from the Merit Systems Protection Board (MSPB) to OPM. The appeal would be handled by the Merit System Accountability and Compliance (MSAC) of OPM. These appeals would be reviewed by MSAC, with adjudication separated from OPM’s policymaking function. OPM could use administrative law judges in certain cases and conduct audits or investigations when warranted.
This change is partly driven by the reality that MSPB is unlikely to have a full, three-member Board anytime soon. OPM estimates MSPB operations based on only two Board members, reducing its capacity to handle additional cases efficiently. Litigation is still pending by the former MSPB Chairman, whom President Trump fired in February 2025.
Under the proposal, probationary employees could appeal a termination only on three grounds: discrimination based on partisan political affiliation, discrimination based on marital status, or an agency’s failure to follow required termination procedures. Appeals based on performance, conduct, or management judgment would not be allowed.
The proposal implements Executive Order 14284, signed in 2025, which established Civil Service Rule XI and reaffirmed the probationary period as a management assessment tool. The Veterans Preference Act of 1944 and the Civil Service Reform Act of 1978 both excluded probationers from full civil service appeal rights, a structure courts have repeatedly upheld.
Appeals from a probationary employee would be filed electronically with OPM’s Merit System Accountability and Compliance (MSAC) office within 30 days of the effective date of the action. OPM would issue initial decisions and could order corrective action, back pay, and attorney fees if an employee prevails.
OPM estimates the change will save money by consolidating adjudication at OPM, though agencies will incur first-year costs to update policies and procedures. The rule is still proposed and would not take effect until a final regulation is issued, likely later in 2026.
Earlier Actions Leading to New Proposed Rule for Probationary Employee Appeals
OPM’s proposal to narrow appeal rights for probationary employees is not a big surprise to those who follow changes in the federal human resources program. This proposed rule builds directly on executive actions taken during President Trump’s first term that emphasized management authority, faster removals, and limits on third-party review of personnel decisions, and additional actions taken earlier in 2025 at the start of his second term in office.
On April 24, 2025, President Trump signed Executive Order 14284 entitled, “Strengthening Probationary Periods in the Federal Service.” The Executive Order announced new rules and policies for managing probationary and trial periods in competitive and excepted services.
OPM issued initial guidance to agencies for implementing the new Order. That guidance explained, for employees whose probationary or trial period ends on July 23, 2025, or later, for their appointment to be finalized and for them to remain employed beyond the probationary or trial period, the agency head or designee has to affirmatively certify, within 30 days prior to the end of the probationary or trial period, that such individual’s continued employment would “benefit the Federal service.”
Bottom Line for Employees and Agencies
For probationary employees, this proposal reinforces a long-standing reality: the first year of federal service offers limited job protections and very narrow appeal rights. For agencies, it strengthens management discretion while consolidating oversight within OPM.
If, or more likely when this proposal is finalized, agencies will need to review or revise regulations, supervisor training, and termination procedures to ensure compliance with the new requirements, particularly given the tight procedural limits that remain appealable.
Based on earlier guidance from OPM in 2025, this process should be relatively easy as the administration has been trying to restrict the flexibility of probationary periods and to enforce stricter adherence to removing marginal or unacceptable employees during the probationary period.
Conclusion
OPM’s proposed rule emphasizes and reaffirms that the probationary period is a trial period, not an entitlement to continued employment. By limiting appeal rights to narrow statutory claims and shifting adjudication away from the MSPB, OPM is implementing the long-standing Trump administration view that probationary removals should be swift, manager-driven, and minimally encumbered by external reviews and further delays and extensive litigation.
In short, the proposal is the regulatory endpoint of a policy approach that began with Trump’s first-term Executive Orders and matured in his second term.
