MSBP called on OPM to change its regulations covering procedural and appeal rights for federal employees to reflect the Federal Circuit’s decisions in Van Wersch and McCormick.
It said OPM should provide guidance and model language for pre-employment agreements that include waivers of procedural and appeal rights that may accrue to individuals who would have such rights under the decisions.
Further, agencies should educate staff about the impact of the decisions and identify at the moment of hiring when probationary employees would obtain full employment rights, MSBP said.
It echoed an earlier report advocating the use of the probationary periods to weed out underperforming personnel before they obtain full appeal and procedural rights and it becomes significantly more difficult to fire them.
In a September 2005 report on the probationary period MSPB said nearly 70 percent of supervisors wanted to have final say over whether a probationer is converted to permanent employment status rather than through direct conversion.
When asked, supervisors said they kept probationers with identified deficiencies because they felt pressured to either keep the person or lose the resource and have no one at all to do the work.
In its latest report, MSPB said agencies should specify in their policies on the federal intern program and other training programs that internships are probationary periods for the purposes of procedural and appeal rights — and Congress should clarify in law that individuals serving probationary or trial periods are not entitled to the same protections as employees with finalized appointments, even if they have qualifying service of more than one or two years.
