HUD won’t grant rehired probationary workers back pay, FEHB benefits, despite law requiring it

As federal agencies scramble to reinstate recently hired, transferred or promoted employees following a pair of court decisions declaring the mass firing of probationary workers across government in recent weeks to be unlawful, one agency appears to be violating federal law governing employee reinstatements.

The Housing and Urban Development Department on Tuesday informed its more than 300 fired probationary employees that they would be reinstated, retroactive to March 17, though they would be put on administrative leave “until further notice,” according to an email obtained by Government Executive.

“Please accept our sincerest apologies for the delayed response,” the department wrote. “Our office has been working tirelessly to ensure we provide accurate responses to your questions. We are currently preparing correspondence that will provide you with important updates regarding your health benefits and any other entitlements resulting from reinstatement of your employment.”

But unlike the vast majority of other agencies compelled by recent temporary restraining orders blocking the Trump administration’s probationary purge, HUD said it would not provide employees back pay for the month they spent off the job. Conversely, the Small Business Administration and the Energy, Transportation and Agriculture departments have all confirmed to probationers that they will be granted back pay.

Federal law requires the provision of back pay to a federal worker who is found to have been the victim of a wrongful adverse personnel action, including dismissal.

“When an appropriate authority has determined that an employee was affected by an unjustified or unwarranted personnel action, the employee shall be entitled to back pay under section 5596 of title 5, United States Code, and this subpart only if the appropriate authority finds that the unjustified or unwarranted personnel action resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due the employee,” state regulations implementing Title 5 of the U.S. Code.

“If our termination was unlawful and invalid, there should be back pay,” said one probationary worker. “Otherwise, this is so unfair, as we hear some other agencies offer back pay to their reinstated employees.”

Additionally, HUD’s email to probationary employees does not mention reinstatement of workers’ health insurance via the Federal Employees Health Benefits Program. Instead, it suggests they look into applying for Temporary Continuation of Coverage, an FEHB bridge plan offered to former federal workers after their departure from government. Unlike FEHBP, TCC plans require the enrollee to pay both their and the government’s share of insurance premiums.

“We are continuing to review the impact of your benefits entitlements,” HUD wrote. “To ensure you do not experience a break in health benefits coverage, you may elect to enroll in Temporary Continuation of Coverage. You must submit your election form within 60 days after receiving your separation notice or 60 days after separation, whichever is later.”

HUD did not respond to a request for comment.

The news comes as agencies continue to scramble to reinstate workers, while a pair of judges consider additional sanctions. A Maryland judge who issued a temporary restraining order against agencies earlier this month held a hearing Tuesday, during which he reportedly said he was loath to issue a nationwide injunction halting the probationary firings, though his effort to limit any ruling to the states whose attorneys general filed suit may be complicated by the fact that some federal workers commute across state lines.

Meanwhile, plaintiffs in the case presided over by U.S. District Judge William Alsup filed a motion Tuesday indicating that if agencies have not complied with the judge’s preliminary injunction by March 31, including the reinstatement of employees to on-duty posts—not simply into administrative leave status—they will move to hold the government in contempt of court.