The Merit Systems Protection Board recently issued a decision on the impact of second probationary periods on employees. Stoute v. Dep’t of the Navy, MSPB Docket No. AT-0752-03-0843-I-1 (April 1, 2005). The law provides that competitive service employees may appeal adverse actions, such as removals or suspensions of 15 days or more, to the Board if they are not serving a probationary period in an initial appointment or if they complete one “year of current continuous service under other than a temporary appointment limited to one year or less.” 5 USC § 7511(a)(1)(A). Sometimes, after successfully completing one probationary period, agencies put an employee under a second probationary period.
For example, agencies have subjected employees to new probationary periods when employees are appointed to new jobs by being selected “from a register”. 5 CFR § 315.801(a)(1). In the past, the Board and the U.S. Court of Appeals for the Federal Circuit have ruled that the second probationary period canceled the employee’s previously earned due process appeal rights. In a shift of its prior positions, the Board ruled in Stoute that an appointment from a register “is not relevant to the issue of whether [the employee] completed 1 year of current continuous service” and that this type of probationary status has no impact because it does not negate previously earned MSPB appeal rights.
Sometimes agencies decide to subject employees to second probationary periods for other reasons. A second probationary period has no meaning unless the employee knowingly and voluntarily waives his rights. If an agency human resource specialist tells an employee about a second probationary period, and the probationary period is noted on the employee’s SF-50, the new probationary period has no impact, according to the Stoute decision. But, if the employee voluntarily agrees to waive his appeal rights as part of a second probationary period, then the probationary period counts and the employee has waived his right to appeal a later adverse action to the MSPB during the probationary period.
This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php.
