Some agencies had acted on their own to rehire certain probationary employees after deciding they needed them after all. Image: iStock.com/YayaErnst
By: FEDweek StaffAn ever-growing list of lawsuits over the status of probationary employees, union contracts and planned layoffs continues to churn, leaving large portions of the federal workforce uncertain about their careers for the long run and even the short run.
One set of cases where developments are expected soon involve President Trump’s order to strip, on national security grounds, union representation rights for most employees in bargaining units. Hearings are planned for the upcoming days—with court orders possibly to follow—in competing suits.
Two separate cases targeting the AFGE and NTEU unions that the administration filed in federal district courts known for their conservative leanings ask for “declarative judgment” that the order falls within a President’s authority. Separate suits filed by the unions in district courts with a more liberal record assert the opposite.
Those cases are considered important because they involve whether the administration can disavow contracts that agencies entered with those unions—and others, by extension—that contain certain protections for employees beyond the minimum required by RIF laws and regulations. Among those for example are requirements that agencies take certain steps in advance to avoid RIFs, along with provisions regarding advance notice, job placement help, and more.
Apart from the order itself, unions are now contesting how agencies are carrying it out. One prominent example has been the VA’s decision to revoke representation by the AFGE and several other unions, while not applying it to employees in the same occupations who are represented by yet other unions. The AFGE has called that distinction “preposterous.”
RIF procedures also are at issue in a number of legal actions focusing on the estimated more than 20,000 probationary employees who were laid off en masse in February. Two federal district judges had held that the layoffs were effectively a RIF ordered by OPM even though it has no such authority. They further held that the RIFs targeting only that category of employee contrary to RIF policies, and that the administration further didn’t follow required procedures, such as giving retention preference to veterans and those with higher performance ratings.
However, their orders requiring some 20 agencies—who account for the large majority of federal employees—to offer reinstatement to those already fired have since been lifted by higher courts. Until the higher courts acted, agencies had been working to rehire those persons, in many cases putting them on paid administrative leave for the interim but in some cases returning them to the job.
Separate from those court cases, some agencies had acted on their own to rehire certain probationary employees after deciding they needed them after all. Their jobs may still not be safe, however, and uncertainty is even higher among others—with at least some who were fired, then reinstated, now facing being fired again.
Adding to that uncertainty is the decision by the Office of Special Counsel to not pursue prohibited personnel practice complaints on behalf of probationers. That decision from an agency now being run by U.S. Trade Representative Jamieson Greer reversed the course that had been set by Special Counsel Hampton Dellinger before he was fired by the White House.
Meanwhile, a temporary MSPB order that Dellinger had successfully sought to require the Agriculture Department in particular to reinstate its fired probationers has expired and the OSC now almost certainly won’t seek an extension or a new order.
Separately, the federal courts have before them suits challenging layoffs that have been announced or that are already under way—commonly by putting employees on administrative leave for the meantime, at numerous individual agencies, or parts of them. Those include, most recently, a new suit against layoffs at USAID and orders temporarily halting layoffs at the Consumer Finances Protection Bureau and U.S. Agency for Global Media.
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