The rules carry out a requirement in the executive order that agencies to make an affirmative determination whether to keep employees on the end of their probationary periods. Image: Jirsak/Shutterstock.com
OPM has finalized management-friendly rules governing the retention or firing of probationary federal employees, including that to retain one at the end of that period, “an agency must certify that finalizing the appointment advances the public interest.”
“For probationers who will not be retained, the agency must provide written notice of the effective date of the termination action,” says a June 24 Federal Register notice, eliminating a prior requirement that they be notified of deficiencies.
That notice requirement had become the focus of several lawsuits following the widescale firing of probationary employees in February. Several judges had issued issues requiring employees be reinstated on grounds that the boilerplate language that agencies used—which did not address individual employees’ performance—did not meet that requirement.
Those injunctions since have been lifted by higher courts although the underlying cases remain pending.
Following the initial court rulings, President Trump issued an executive order in late April requiring instead that the employee “bears the burden of demonstrating why their continuation in employment through the finalization of their appointment to the federal service is in the public interest.”
Considerations are to include the employee’s performance and conduct; the needs and interests of the agency; whether the employee’s continued employment would advance organizational goals of the agency or the government; and whether the employee’s continued employment would advance the efficiency of the service.
OPM shortly afterward issued proposed rules and guidance on carrying out the order, stressing that agencies no longer need to cite a performance or conduct problem when firing federal employees during their probationary periods.
That guidance further said that to remain employed after the end of the probationary period, employees “should take every opportunity to demonstrate their fitness and qualifications through sustained high performance, good conduct, and meaningful contribution to their agency’s mission.” However, it also stressed that the decision “rests with the discretion of the agency.”
The rules also carry out a requirement in the executive order that agencies to make an affirmative determination whether to keep employees on the end of their probationary periods. That strengthened guidance from the Biden administration recommending, but not requiring, agencies notify supervisors in advance, to avoid employees gaining tenured status by default.
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