By John V. Berry, Esq., www.berrylegal.com
This article discusses federal employee probationary rights. Probationary employee rights can be a confusing subject for most federal employees. The rights that these types of employees have can also be unclear or not fully explained by federal agencies to employees. This article hope to clear this area of law up for federal employees that may be in their probationary status.
Purpose of the Federal Employee’s Probationary Period
The purpose of the probationary period for federal employees, in theory, is to provide a federal agency with the ability to evaluate an employee’s abilities, conduct and performance while they are working in the actual position in order to determine if the appointment should become permanent. While the time period varies, the probationary status for federal employees usually lasts for a one-year period. Until the probationary period has been completed, a federal probationary employee does not have full federal employee rights.
Once a federal employee completes their probationary period, the individual becomes an permanent federal employee who is given a significant level of protection from unjust employment actions by federal agencies. However, until the appointment is finalized, the probationary employee has only limited job protections. Many describe probationary employees as completing a “trial period” with the agency. However, this trial period can be abused by federal supervisors and a termination can be based not on actual merit, but personality dislike or illegal motives.
Probationary Federal Employee Rights
Even though federal employees in their probationary status have limited rights, they still have some rights. These rights normally begin or become important when the probationary employee is terminated during their probationary period. When a permanent federal employee is terminated, they have significantly greater protections to due process and Merit Systems Protection Board (MSPB) relief. However, this is not the case with probationary employees. The rights that a probationary employee has for appealing such a termination follow:
1. Termination for Pre-Appointment Reasons
Probationary employees, however, do have some rights. If a federal agency proposes to terminate a probationary employee in whole or in part for conditions arising before their appointment (pre-appointment reasons), they are entitled to notice of the proposed termination, a reasonable time to respond to the proposal and to furnish supporting supporting evidence, and written notice of the federal agency’s decision. A pre-appointment reason is something that occurred before hiring, such as allegedly falsifying a resume. That type of termination decision should include the reasons for the action and notice of the probationary employee’s right to file an appeal with the Board. However, it can be the case that the federal agency does not, in fact, give notice of the right to appeal to the MSPB in this type of case. However, for pre-appointment concerns, the probationary employee may usually appeal to the MSPB on the ground that his or her termination was not in compliance in accordance with the procedural requirements of 5 C.F.R. § 315.805.
2. Terminations for Conduct or Performance
If a federal agency terminates a probationary employee for unsatisfactory performance or misconduct during their probationary period, they have fewer procedural protections. In such a case, the probationary employee is only entitled to a written notice as to why they are being terminated (which isn’t always given) and the effective date of the termination. The federal agency should state its conclusions as to the probationary employee’s performance or conduct, however this doesn’t always happen.
In this type of case, a probationary employee may appeal their termination only if they can allege that the decision was based on partisan political reasons or marital status. See 5 C.F.R. § 315.806(b). Basically, the probationary employee in partisan political cases must show that he or she was terminated based on supporting a particular party or political candidate or some other political reasons. A probationary employee, in a marital discrimination case must show the MSPB that some sort of discrimination occurred on the basis of their marriage, divorce or related status. Partisan political reason cases come up more often than marital status discrimination cases, but both are not common. The more common appeals routes for probationary period appeals follow.
3. Appeal Options Other than the MSPB for Probationary Employees
Even where an MSPB appeal does not seem like the right type of appeal for a probationary employee, there are other appeals options. These can include Equal Employment Opportunity (EEO) complaints, whistleblower and/or military discrimination (USERRA) appeals. It is frequently the case that a probationary employee can demonstrate that there is a basis for contending that a probationary termination was based on an illegal act, such as discrimination or reprisal. In such cases, there is the ability to challenge and/or attempt to resolve the termination. The EEO process, where it is applicable, seems to be the best venue for a probationary employee to challenge their termination. We have also had good cases for appeal where the probationary employee made a disclosure of waste, fraud, abuse, gross mismanagement or of illegal activities.
Mistakes by the Agency
Sometimes, federal agencies make mistakes regarding probationary period employees. These mistakes can be costly. When this happens and the employee is terminated, they may have a strong case for full reinstatement. Mistakes happen, primarily, in two types of situations. The first type of situation where this has happened involves timing issues. If a federal agency gives a probationary period of 1-year to a federal employee, but then terminates them 1 day after their 1-year probationary period has ended, then they should be given the full appeals rights of regular federal employees. It is not that uncommon for federal agencies and supervisors to miss their window for terminating a federal employee or forgetting the actual date they started until it is too late. Sometimes, federal agencies also misunderstand when the probationary period starts.
Second, sometimes federal employees are misclassified as probationary. In such cases, they will have full regular federal employee rights. This happens when a federal employee is performing the same duties at another agency and has simply moved to a different agency. In such a case it can be argued that the employee has already fulfilled their probationary period at the other agency and must be given full rights. In such cases, the terminations can be reversed.
Contact Us
When a federal employee in a probationary status is facing potential or actual termination from federal employment it is important to obtain legal advice and legal representation from counsel experienced in federal employment matters. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.