Increasing Confusion and Mistakes Among Agencies
Consultants from InformedFed experienced an increase in the number of cases in which federal employee’s receive notice of probationary period termination (probationary employees), but is in fact not an employee on probation. This situation is the result of recent complications concerning the application of probationary period’s in federal service due to two key cases: Van Wersch v. Department of Health and Human Services, 100 FMSR 7005 , 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v. Department of the Air Force, 102 LRP 24759 , 307 F.3d 1339 (Fed. Cir. 2002). However, what we believe may be a high rate of errors by federal Agencies in applying probationary periods, is going largely unnoticed because most affected employees are not appealing, believing they do not have appeal rights as indicated in the Agency notice. This is simply untrue in many cases. Every employee must independently validate whether they are legally on a probationary period or not. Do not rely on agency Employee and Labor Relations Specialists for validation.
So, What is the Deal?
The probationary period (also called a “trial period”) is a final step in the examination of an employee in federal service. It provides agencies wide latitude in assessing a new federal employee for continued employment in federal service and provides very limited appeal rights. Probationary employees can be terminated for deficiencies in performance or conduct. Unlike with non-probationary employees, probationary employees may be terminated with minimal procedural requirements and without need to meet “efficiency of service” standards that regulate removal of non-probationary employees. In short order, it is very easy to terminate a probationary employee and sustain the termination of a probationary employee before any applicable third-party. Also, union agreements exclude probationary employees from most protections afforded non-probationary employees.
The issue of federal probationary status is very complex as noted by the Merit Systems Protection Board (MSPB) in it’s 2006 report Navigating the Probationary Period After Van Wersch And McCormick. We will make no attempt in this post to analyze the report as that would result in a near treatise instead of a consumable and understandable blog post intended to help federal employees.
Importance for the (non) Probationary Employee
The importance of a proper probationary period determination cannot be overstated as such a determination will determine whether the employee has “Full Appeal Rights.” When a federal employee is first hired, re-hired, or transferred from another federal agency or even within the same agency, a Staffing Specialist typically initiates the appointment action. At this time, the Specialist will make a determination concerning the affected employee’s probationary status, usually relying on Standard Form 144, Statement of Prior Federal Service, which requests a list of all prior federal service, including dates and type of appointment. This determination is usually not reviewed or subject to a quality assurance review and it has been my professional experience, errors are often made in these determinations. An improper probationary period determination essentially becomes a fact when a processing and records clerk codes the determination of the Staffing Specialist in the personnel action reflecting the appointment. At this point, an SF-50 (notification of personnel action) is generated and the probationary period is indicated in that document. This is how a mistake becomes a fact as this document is typically relied upon, and not challenged, by most Employee and Labor Relations Specialists. This document also becomes a key evidentiary part of any record related to an employee appeal. (Note- in my agency workgroup, I require ELR Specialists to independently verify a probationary period by reviewing the employee’s Official Personnel Folder (OPF).
The Argument Can be Complicated
Based on the foregoing, any employee an agency terminates based on a probationary status is faced with an uphill battle to prove they are not probationary, which is necessary to establish jurisdiction before MSPB. The affected employee essentially needs to prove the Staffing Specialist made an error in the calculation or determination of a probationary period. This is easier said than done, and usually only addressed after the employee is terminated. This places the employee in a difficult position. Recently, we worked with a National Border Patrol Council local union in attempting to correct such a mistake two years after the probationary termination was effected. The Agency simply rejects any attempt at correction as they know appeal options for the employee have expired. Now, compare this to a Department of Defense client that hired us even before he received official notice of a probationary period termination (he was verbally told “it was coming”). We were able to audit his Official Personnel Folder and prepare correspondence with attached evidence proving the employee was not probationary. Not only did they cancel the probationary period termination, they corrected his official record and proposed no further action.
Some (not all) Situations Which May Lead to Wrongful Probationary Period Determinations:
- An employee moves from one agency to another
- An employee moving to a different position within or from outside an agency and the new position is not sufficiently dissimilar from a position in which a probationary period requirement was already met
- Re-hired federal employees who already completed a probationary period
- Employees on multiple back to back “Not to Exceed” appointments
- Improper notice provided to employees in Federal Career Intern Program (FCIP)
- Illegally executed probationary employee waiver of appeal rights
- Employee incorrectly completed Standard Form 144, Statement of Prior Federal Service
- Agency failed to effect the probationary termination prior to the end of the employee’s tour of duty on the last day of probation, which is the day before the anniversary date of the appointment
So, What Does a “Probationary Employee” do?
If you are an employee affected by what you believe, or even remotely suspect, is a wrongful probationary period determination, we recommend the following:
- Secure a complete copy of your Official Personnel Folder.
- Raise the issue to your Supervisor and the agency Staffing Specialist. If you do not receive any resolution, raise the issue to the Staffing Supervisor and then the Human Resources Officer if necessary. All communications should be in writing.
- If the agency proposes your termination based on your probationary status, immediately raise the issue, in writing, to your Supervisor and the assigned Employee Labor Relations Specialist and or ELR Supervisor. Request the probationary termination not be effected until a complete review of your status is made. All communications should be in writing.
- If the agency terminates, you may appeal to MSPB. You will need to prove to MSPB you are in fact not probationary (this is called jurisdiction). That will be the threshold issue before MSPB. If you prove you are not probationary, the agency will be forced to reinstate you with back-pay and benefits.
- Consider hiring a consultant to advise you through this process and even prepare your correspondence challenging your probationary status determination.
It is our collective experience that if challenged to the agency in a coherent manner early enough, the agency will reverse the probationary period termination without the need to file MSPB appeal. This should be your goal. You will only get “one shot” at correcting the situation and you may want to hire a Consultant to review your situation, advise you, and possibly prepare documentation for you.
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