Oversight agency finds Trump’s federal worker firings unlawful, asks for some employees to be reinstated

After publication of this story, OSC released a statement confirming its findings and suggesting Dellinger is actively contemplating expanding them to include far more federal workers.

"The special counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief," OSC said. "Dellinger is considering ways to seek relief for a broader group without the need for individual filings with OSC." 

By law, agencies terminating employees in their probationary periods must do so because their “performance or conduct demonstrates that they are unfit for federal employment.” OSC found, however, that agencies had mass fired their employees without specifying what performance or conduct issues individual employees presented. In some cases, agencies did not cite performance or conduct at all. It noted the language agencies used in their termination notices were “quite similar” to one another and none of the firing letters “provide any detail or individualized assessment.”

OSC investigated the backgrounds of the employees who made the complaint to the agency and found none of them had any indication of poor performance or conduct in their histories and instead had received only exemplary evaluations. 

“Based on public statements, the agencies’ decision to terminate large numbers of probationers was to accomplish reorganizations and cost savings,” OSC said. “In other words, a RIF.” 

Agencies improperly firing their employees have denied them of pay, benefits, possible accrual of tenure and due process rights, OSC said. Some employees, due to their high performance marks and federal layoff procedures, would not necessarily lose their jobs under a RIF. 

Some of the probationary firings more specifically violated rules surrounding those dismissals, OSC said. Agencies must use the “trial period” to earnestly assess employees’ performance.

“This requirement is not a simple bureaucratic technicality—compelling agencies to assess the specific fitness of each employee prior to terminating them ensures that outstanding employees are not arbitrarily lost and that terminations are truly in the best interests of the federal service and consistent with merit system principles,” OSC said. 

'Chaos and Suffering'

The employees’ cases were brought to OSC by Democracy Forward and Alden Law Group. They had sought to have the case heard as a class action, a proposition MSPB can still consider. If MSPB grants the stay request, according to federal personnel experts who reviewed the case, it could immediately apply to all fired employees at least at the six named agencies. 

“Today’s news from the Office of Special Counsel confirms what we have long known: the mass termination of federal workers is unlawful and Trump’s only plan here seems to be to inflict chaos and suffering on the American people and the federal workers who serve them as opposed to using  our government to better the lives of working Americans, families, and communities across the country," said Democracy Forward President Skye Perryman. "It is among the many harmful and unlawful  actions being taken by this Administration without regard for impact or purpose." 

The group is asking MSPB to move swiftly to reinstate the employees. 

“It’s common sense that if you want to remove someone for poor performance, you actually have to look at that person’s performance in the job. And if they looked, they’d see the value that these workers bring,” said Rob Shriver, former Acting  OPM director and managing director of Democracy Forward’s Civil Service Strong program. “The mass terminations of probationary employees are flatly illegal and we urge the MSPB to move swiftly to implement this recommendation.”

The White House and OPM did not immediately respond to request for comment. 

This story has been updated with comment from OSC.