This article provides a comprehensive guide to the federal probationary period, empowering federal employees and supervisors with essential knowledge about rules, rights, and responsibilities.
Navigating the federal probationary period is crucial for establishing a long-term federal career. This article explores the key aspects of the probationary period, including its duration, conditions for termination, and the rights of employees during this time. It offers valuable insights for both employees and supervisors to ensure compliance and success.
This lesson is a preview from Graduate School USA's Federal Employee Relations course.
The probationary period is a critical phase in federal employment, offering newly appointed individuals the opportunity to demonstrate their capabilities while allowing supervisors to evaluate their performance and conduct. This period is governed by specific laws and regulations, making it essential for both employees and supervisors to understand their rights and responsibilities. In this blog, we’ll explore the key aspects of the probationary period, including its length, conditions, termination procedures, and appeal rights.
What Is the Probationary Period?
The probationary period is a statutory timeframe during which newly hired federal employees prove their suitability for their roles. Supervisors are encouraged to use this period effectively, as terminating a probationary employee is simpler and more efficient than removing a permanent employee.
Key Insight:
Employees often exhibit their best behavior during this period, so any issues that arise within the first year should be considered a red flag.
Who Is Considered an Employee Under 5 USC 7511?
An individual qualifies as an "employee" under 5 USC 7511 if they meet one of the following criteria:
- Competitive Service: Completed one year of continuous service under a non-temporary appointment.
- Preference Eligible in Excepted Service: Completed one year of continuous service in the same or similar positions in an Executive agency or the U.S. Postal Service.
- Non-Preference Eligible in Excepted Service: Completed two years of continuous service in the same or similar positions under a non-temporary appointment.
Employees meeting these criteria generally have the right to appeal their removal to the Merit Systems Protection Board (MSPB).
Length of the Probationary Period
The probationary period typically ends the day before the anniversary of the employee’s appointment, provided they have completed their scheduled tour of duty.
No Break in Service
If an employee transfers, is promoted, demoted, or reassigned within the same agency before completing their probationary period, they only need to complete the remaining time.
Break in Service
Prior service counts toward the probationary period if:
- It is within the same agency and line of work.
- There is no break in service exceeding 30 calendar days.
Exceptions: - A break exceeding 30 days may result in a new probationary period.
- Placement in a temporary position is considered a break in service.
Absence During the Probationary Period
Absences may count toward the probationary period if they occur under the following conditions:
- While on workers’ compensation.
- While on active duty.
- When placed in Leave Without Pay (LWOP) status due to illness or other reasons.
Example:
In Gadsden v. State Department, the MSPB ruled that absences during the probationary period, contrary to OPM regulations, still count toward its completion.
Termination of a Probationary Employee
Terminating a probationary employee is straightforward and requires written notification. Agencies are not obligated to provide detailed reasons for termination under Executive Order 14824.
Conditions for Termination
- Termination must occur before the end of the probationary period unless the agency certifies that finalizing the appointment serves the public interest.
- Agencies may consider factors such as performance, conduct, and organizational needs when finalizing appointments.
Example:
In Watson v. VA, the MSPB upheld the termination of a probationary employee who failed to meet performance standards.
Supervisory and Managerial Probationary Periods
Supervisors and managers are subject to a separate probationary period before their appointments become final.
Key Requirements:
- Failure to Complete: Employees who fail to complete this period are entitled to reassignment to a position of equal grade and pay.
- Length: Agencies determine the length of the probationary period.
- Prior Service: Time served in a supervisory role counts toward this period, but non-supervisory time does not.
Appeal, Grievance, and EEO Rights
Probationary employees have limited rights to challenge adverse actions:
- Appeals: Employees reassigned to non-supervisory roles cannot appeal to the MSPB but may direct appeals to the OPM Director.
- Grievances: Probationary employees generally lack grievance rights.
- EEO Complaints: Employees may file complaints if they believe adverse actions are based on discrimination.
Example:
In DeCleene v. Department of Education, the MSPB ruled that employees retain full appellate rights for adverse actions unrelated to supervisory duties.
The probationary period is a pivotal time for both employees and supervisors in federal service. By understanding the rules and expectations, agencies can ensure fair evaluations while employees can navigate their rights effectively. Whether it’s the length of the probationary period, conditions for termination, or appeal rights, this phase sets the foundation for a successful federal career.
