By Deborah J. Hopkins, June 14, 2023

We get a lot of questions about probationary periods. There can be confusion if employees switch agencies, are rehired after a break in service, or have veterans’ preference.

The end date of an employee’s initial appointment probationary period, however, is not a mystery. The probationary period lasts one year; it ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. 5 C.F.R. § 315.804(b). Therefore, an agency can pinpoint the exact moment the probationary period ends, and they can do so from the very first shift the employee works.

A recent MSPB case (Stewart v. DOT, 2023 MSPB 18 (May 16, 2023)) reinforces a lesson that’s important to share with all supervisors, advisors, and agency leaders: If you want to remove a probationary employee, do NOT wait until the very end of the probationary period to do so. Give yourself a cushion of at least a few days.

Here’s a timeline to help clarify what happened in the case:

  • The appellant began working for the Department of Transportation as a career-conditional GS-12 Safety Recall Specialist on Jan. 22, 2017. His regular work schedule was Monday through Friday, 7 a.m. to 3:30 p.m.
  • On Jan. 11, 2018, his Division Chief recommended that he be terminated for post-appointment reasons.
  • Also on Jan. 11, the Division Chief informed the appellant that, unless he resigned his position on or before Jan. 15, he would be terminated.
  • On Jan. 16, the appellant tendered his letter of resignation, to be effective Monday, Jan. 22.
  • HR advised the division chief that Jan. 22 was AFTER the end of the probationary period, so the Division Chief requested the appellant change his resignation date to Friday, Jan. 19, his last scheduled workday before the expiration of his probationary period. The appellant declined, yet he returned his laptop and PIV at the end of his tour Jan. 18.
  • On Jan. 19, HR “obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action.”
  • Also on Jan. 19, the appellant was out on previously scheduled sick leave so the agency sent the termination notice “effective at the close of business on January 19, 2018” to his work email address, and by overnight delivery to his home address.

Do you see a problem yet?

According to the Board, “we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b).” [bold added]

Even if the appellant had somehow logged in to his work email at some point before 3:30 p.m. on Jan. 19, which is disputed as he had returned his laptop the day before, the language in the letter controls. The appellant was clearly informed he was being separated after his probationary period was completed. And because he was no longer a probationer, he was removed without due process.

Thanks to the lack of quorum at the MSPB, this case sat in the stack of PFRs for more than five years, until last month when the Board ordered the agency to restore the appellant to his previous position and pay five-plus years of back pay, plus other costs.

For more on this topic, join us on Aug. 1 for Everything You Need to Know About Probationary Periods – a comprehensive one-hour virtual training.

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