While probationary employees have fewer job protections than those who have served out those periods, the extent of their rights has become a central issue in court disputes over the wide-scale firings of those employees in February. Image: Joshua Sukoff/Shutterstock.com
By: FEDweek StaffPresident Trump has issued an executive order telling agencies to strengthen their scrutiny of federal employees in their probationary periods after hiring, including requiring agencies to make an affirmative determination whether to keep those employees before those periods end and setting standards for making those decisions.
“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,” it says.
The order notes that the MSPB has recommended such a policy to prevent probationers from gaining tenured status automatically if an agency fails to assess their performance during that trial period, which typically is one year in the competitive service and two years in the excepted service.
The Biden administration in late 2023 had told agencies that they should “advise a supervisor to make an affirmative decision regarding the probationer’s fitness for continued employment or otherwise take appropriate action.” It also advised agencies to remind supervisors months in advance that an employee’s probationary period was nearing its end.
The new order goes further by specifying that in most cases, 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.”
In deciding whether an employee meets that standard, it says, agencies are to consider “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.”
However, that requirement will not apply to an employee serving a probationary period “due to being promoted, transferred, or otherwise assigned, for the first time, to a supervisory or managerial position,” unless the employee is meanwhile still serving out the initial probationary period after hiring into the prior position.
The new order further gives OPM the authority to “prescribe circumstances under and procedures by which employees terminated from a probationary or trial period may appeal such termination,” with no appeal from a decision in that process allowed. Although not specified, such a process likely would be similar to internal grievance processes within the agency—for example, review by a higher-level official—rather than to an external route such as arbitration or an appeal to the MSPB.
While probationary employees have fewer job protections than those who have served out those periods, the extent of their rights has become a central issue in court disputes over the wide-scale firings of those employees in February.
That issue likely will arise again as RIFs are imposed at many agencies. In retention decisions, probationers will be at a disadvantage in those actions because of their short length of service, but those who are military veterans may have an advantage over longer-term employees who aren’t veterans.
The order meanwhile tells agencies to compile lists of employees whose probationary periods end after July 23, designate officials to evaluate them, and make decisions on whether to retain them before those periods end.
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See also,
Top 10 Provisions in the Big Beautiful Bill of Interest to Federal Employees
A Pre-RIF Checklist for Every Federal Employee, From a Federal Employment Attorney
Work Longer or Take the FERS Supplement Now: Which is Better?
Doubling Your TSP (C Fund vs G Fund)
