Federal employee trial periods at risk, MSPB warns
Two court cases have complicated the definition of which workers qualify for probationary terms, report says.
It is becoming difficult to fire federal employees even during one-year trial periods, according to a new report from the Merit Systems Protection Board.
Federal employees are notoriously hard to dismiss, in part because of a potentially lengthy paperwork and appeals process. Agencies can be forced to give back pay if an employee wins an appeal. Most federal workers, however, have a one-year probationary period during which they are not considered a full employee and are not granted protections such as the right to appeal a firing.
But recently, as MSPB pointed out in its report, two federal court cases have muddied the definition of who qualifies for a probationary period. The verdicts in these cases -- Van Wersch v. Department of Health and Human Services and McCormick v. Department of the Air Force -- changed the interpretation of current law, the report stated.
For example, under the new interpretation, if new employees already worked in a similar job at another federal agency, it might be impossible to give them a probationary period.
In addition, some employees who were hired outside the usual strict competition process for federal jobs, such as under a special program to hire disabled employees in a probationary manner, might gain full rights as a federal worker if a certain amount of time passes, even if they never compete for a job.
The MSPB, which encourages agencies to use the probationary period more heavily as a management tool to weed out poor performers, recommended some changes in its report, which it sent to Congress as a result.
The Office of Personnel Management should issue new regulations so agencies know which employees qualify for the probationary period, MSPB said. The board also recommended that Congress review the law and amend it if lawmakers disagree with the courts' findings.
As it is, the board's research has shown that managers do not use the probationary period to its fullest. A survey last September revealed that despite the ability to remove an employee easily in the first year, 52 percent of supervisors surveyed said they expected to retain poor performers -- who they would not have hired in the first place if they could do it over again -- anyhow.
In April, a coalition of groups representing federal managers, including the Senior Executives Association and the Federal Managers Association, listed extending the probationary period to two or three years as one of several changes it will advocate.