Ask FELTG: I read your article on probationary separations, where you said probationers can be removed for reasons other than performance or conduct. Do you have a citation for that?

April 8, 2025

Thanks for the question. Because probationers have appeal rights in only limited situations, as far as we know there are no cases that involve a discussion of the merits of probationary separations (based on performance, conduct, or any other business-related reason); cases only exist for those separations the law explicitly identifies as granting a probationer an appeal right:

  • Partisan political activity
  • Marital status
  • Pre-appointment reasons

Plus, probationers can file complaints over

  • Discrimination or retaliation under EEO laws
  • Whistleblowing or other PPPs

So, there are two ways to approach your question:

  1. Interpret the OPM regulation at 5 CFR § 315.804 narrowly, and determine that because the section is titled “Termination of probationers for unsatisfactory performance or conduct,” this regulation strictly limits agencies to only separating probationers for performance or conduct reasons.
  2. Because there is no law that says, “An agency may only remove a probationer for A, B, C, D, and E,” work backwards from the limited situations where probationers have appeal rights (see above), and interpret the law to mean that any other business-related (i.e., non-illegal) reason is permissible. Regulations don’t – and can’t – exist for every possible scenario; perhaps it’s because of 5 CFR § 315.804 that historically probationary separations have been limited to performance or conduct reasons. Or perhaps the limitation is restricted to performance or conduct reasons.

In other words, until there is a law, regulation, or case that identifies other reasons why probationary separations are not permitted, many agencies have moved forward with the understanding that there are no additional appeal/complaint rights other than those situations identified above. The OSC, the MSPB, and the Federal courts are considering this now.

This recent cross-government separation of probationers has been, as far as we at FELTG recall, the first of its kind. We welcome further discussion, as this is uncharted territory. [email protected]

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.