By Deborah Hopkins, October 16, 2019
A question recently came up in class about the difference between an initial-appointment probationary period and a supervisory probationary period in the competitive service. It turned into a more interesting discussion that I would have guessed, so I thought perhaps some FELTG readers might also be intrigued. Here goes.
Initial-Appointment Probationary Period
When an individual gets her first job with the federal government, she begins a one-year probationary period with that initial appointment – unless she works for DOD, in which case her probationary period is two years. During this time, the employee is expected to perform the work at an acceptable level, and to follow workplace rules. If, during the probationary period, there is a problem with the probationer’s performance, the agency can remove the employee without putting her on a performance demonstration period. If the employee is engaging in misconduct, the agency can remove her for a first offense without utilizing progressive discipline, even if the misconduct is minor. In addition, the probationer has very limited appeal rights and generally cannot appeal her removal to MSPB. (There are a few exceptions: If she claims she was removed because of her marital status, or because of her partisan political activity, she can appeal to the MSPB. Otherwise, the Board has no jurisdiction.) A probationer does have a right to file an EEO or OSC complaint.
The reason a probationer’s MSPB appeal rights are limited is because until the probationary period is successfully completed, the employee has not earned a property interest in her job, and, therefore, she is not entitled to the constitutional due process afforded to vested career employees (Advance Notice, Opportunity to Respond, Impartial Decision). Most employees are on their best behavior when they start a new job. If, in the first 12 months of employment, it becomes apparent the person is already not doing a good job, the agency should remove that person before the statutory protections attach.
The probationary period applies to initial appointments with the federal government as a whole, so an employee new to your agency may have already completed a probationary period, or part of a probationary period, at another agency.
Timing is important here so if you’re thinking about removing an employee who is new to your organization, check the calendar to determine whether you can remove them without procedures.
Supervisory Probationary Period
Now let’s talk about new supervisors and managers, and their probationary periods. But first some definitions. According to MSPB’s research brief Improving Federal Leadership Through Better Probationary Practices (May 2019):
A supervisor is someone who accomplishes work through the direction of other people and performs at least the minimum supervisory duties required for coverage under the OPM General Schedule Supervisory Guide. They plan work, communicate organizational goals and policies, guide performance, listen to concerns and ideas, ensure employees have the resources needed to do their jobs, play a significant role in determining the culture of the organization, and often make difficult decisions about employee recruitment, retention, development, recognition, and appraisal. In addition, because resources are scarce for many employers, supervisors are often expected to perform line work that requires technical skills.
A manager supervises other supervisors and is not a member of the Senior Executive Service (SES). Further, a manager, as described in the General Schedule Supervisory Guide, directs the work of an organizational unit, is held accountable for the success of specific line or staff functions, monitors and evaluates the progress of the organization toward meeting goals, and makes adjustments in objectives, work plans, schedules, and commitment of resources.
Because the roles of supervising and managing people are of the utmost importance in agencies achieving mission success, an additional probationary period attaches when an employee first becomes a supervisor or manager. These probationary periods are governed by different regulations than the initial-appointment probationary periods. While there is no statutory timeline, most agencies set this period to a year.
Interestingly, agencies also require managers to complete a managerial probationary period once they begin their first manager job, even if they have already completed a supervisory probationary period.
So, at the end of this probationary period, how does an agency determine if a supervisor or manager has been successful? The regulations allow agencies a lot of flexibility in making this determination before the supervisory appointment is finalized. Some lay out the expectations explicitly while others leave a lot of judgment up to the next-in-command.
Let’s say the supervisory probationary period doesn’t go well and the agency determines the employee is not an effective supervisor. What happens now? Well, just because someone isn’t a good supervisor doesn’t mean that person isn’t a good employee. Results from MSPB’s Governmentwide 2016 Merit Principles Survey show that 72 percent of employees believe that their supervisor had good technical skills, but only 62 percent believed their supervisor had good people-management skills. Interestingly, though, in 2016 there were 28,467 new supervisors but agencies only took action in 192 of those cases – about .67%.
Being an unsuccessful leader does not automatically mean a probationary supervisor is out of a job at the end of the year. As long as that person has successfully completed the initial-appointment probationary period through prior federal service, she will be reassigned to a non-supervisory position in the agency at the same grade-level and pay she was earning before she became a supervisor. If, however, the supervisor or manager was not in the competitive service before beginning her supervisory probationary period, then she is also concurrently serving her initial-appointment probationary period and has no right to a non-supervisory job, so she can be removed from service. [email protected]