By Deborah Hopkins, March 19, 2020
In a recent newsletter, I discussed the differences between initial appointment probationary periods and supervisory probationary periods. As a result of this discussion, FELTG received some follow-up questions, including requests for explanation of more complicated scenarios involving probationary periods. So here goes.
What happens if the agency wants to remove a probationary employee for pre-employment reasons?
If a probationer in the competitive service is removed for reasons occurring after they begin work, such as a performance or conduct issue, they have no MSPB appeal rights and no right to due process, with limited exceptions. However, if a probationer is being removed for a condition that arose before they started their job at a federal agency (for example, they lied on their job application), then they are entitled to a three-step procedure that mimics due process:
- Notice for the reasons why the agency is proposing the action;
- A reasonable amount of time to file a written response; and
- A written decision at the earliest practicable date, with notice of a right to appeal to MSPB.
See 5 CFR § 315.805.
Note: This three-step process does not follow the same 30-day notice timeline as a proposed removal actions for a fully vested career employee. These procedures are generally abbreviated by agency policy to be a few days at most.
Does a reinstated employee have to serve a new probationary period?
When an agency appoints an individual using reinstatement authority, the individual does not have to serve a probationary period if during any prior service that forms the basis for the reinstatement, the individual successfully completed probation. 5 CFR 315.401, 801(a); Aviles-Wynkoop v. DoD, DC-315H-16-0327-I-1 (2016)(NP).
How are temporary appointments related to probationary status?
For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days break in service between appointments. The reason for this was the theory of a Continuous Employment Contract. See Roden v. TVA, 25 MSPR 363 (1984).
A few years ago, though, MSPB changed its stance and said in order to gain MSPB appeal rights, temporary employees must have more than a year of continuous, uninterrupted employment with no break in service – not even a day or two. Winns v. USPS, 2017 MSPB 1. See also Bough v. DoI, Fed. Cir. 2018-1477, 1478 (April 5, 2019). This “current, continuous standard” for temporary employees allows them to count their work toward completion of probation when the prior service:
- Is in the same agency,
- Is in the same line of work (determined by the employee’s actual duties and responsibilities); and is
- Continuous (without a service break).
5 CFR 315.802(b)
In the excepted service, prior intervals of permanent service that are separated at the time of removal by a period of temporary service do not count toward the two-year requirement, even if there is no break in service when one considers both temporary and permanent positions. Roy v. MSPB and DoJ, 672 F.3d 1378 (Fed. Cir. 2012) (employee who had 8 years permanent employment and 1.5 years permanent employment separated by an 18-month temporary appointment did not have MSPB appeal rights).
What if an employee voluntarily accepts a job with a probationary period?
There are some positions in the federal government that may require a probationary or trial period regardless of the employee’s employment history with the government. Employees have appeal rights, regardless of whether they are serving a probationary/trial period, if they have:
- Current continuous employment (as defined above) of:
- One year in the competitive service (excluding service in temporary positions with a duration of two years or less), or
- Two years in the excepted service, and
- For veterans: one year in either service.
Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101 (August 30, 2012).
This means that an employee in the competitive service who has completed a year of current, continuous service (not a temporary appointment) has full procedural and appeal rights even if that individual is serving a probationary period. 5 USC 7511(a)(1)(A). If the individual is in the excepted service then the full appeal rights vest after two years even if that individual is serving a probationary period. 5 USC 7511(a)(1)(C). A person eligible for veterans preference will receive full procedural and appeal rights after one year of “current continuous service in the same or similar positions” whether the veteran is in the competitive or excepted service. 5 USC 7511(a)(1)(B).
In summary, employees have two separate and distinct avenues to appeal rights:
- Employees who have completed a probationary period have appeal rights.
- Employees who have a year of current service prior to the termination have appeal rights.
A special note for DOD, the probationary period is two years instead of just one, so some of your timelines may have to be modified accordingly. Hopkins@FELTG.com