Blog Post

Probationary Federal Employees and Their Rights

Jeremy Thompson - Senior Attorney • Mar 20, 2020

Many federal probationary do not fully understand their employee rights, and such rights are often not fully explained by federal agencies to employees.

A probationary period takes place in the competitive service and a “trial period” is often used to describe a similar period in the excepted service. In both cases, the purpose is to provide a federal agency with the opportunity to assess if the employee will be an asset to the government prior to finalization of the appointment.

No matter how thoroughly an employer interviews a potential employee and checks his or her references, there are bound to be surprises when a new employee begins working for an employer. Sure, some of the surprises may be good. Perhaps the employee is very personable and is an exceptional learner. On the other hand, the surprises may be bad such as when an employee is consistently tardy or when an employee is unable to work in partnership with other employees. Those are the sorts of things the government, or any employer, would not know until the employee started the job. As a result, the government requires employees to complete a probationary period to ensure that the hiring decision was correct, and that the employee is an asset to the government.

Probationary periods typically last one or two years. If a federal employee completed their probationary period, the employee becomes a permanent federal employee who is awarded a high level of protection from improper employment actions by federal agencies. However, during the probationary period employees have very limited procedural and appeal rights. Those limited rights are derived from regulations issued by the U.S. Office of Personnel Management.

The very nature of the excepted service is that it is excepted from the ordinary rules of the competitive civil service. OPM issued fewer regulations that apply to the excepted service; however, those agencies possess the ability to issue their own regulations and policies governing such employment.

Removals for Conditions Arising Before the Appointment
Pre-appointment conditions involve something that transpired prior to hiring, such as lying about the employee’s background or falsifying a resume. When a probationer in the competitive service is removed for conditions arising before appointment, the individual is entitled to:

  1. Advance written notice stating the reasons, specifically and in detail, for the proposed action.
  2. Reasonable time for filing a written response to the notice of proposed adverse action. If the employee responds, the agency shall consider the answer in reaching its decision.
  3. Written notice of the agency’s decision in writing, which informs the employee of the reasons for the action, informs the employee of his right of appeal to the Merit Systems Protection Board and the related time limit to file an appeal. See 5 CFR § 315.805
An appeal of a decision to remove an employee from federal service due to conditions arising before the appointment typically involves allegations that the removal did not comply with those requirements. However, the employee may also appeal the removal decision for the reasons set forth in 5 CFR § 315.806, i.e., if the removal was based on partisan political reasons or marital status. If the appeal is based on marital status, the employee must prove that the removal was based on marital status discrimination. Partisan political cases allege that the removal was based on the employee’s political beliefs or support.

Removals for Reasons of Unsatisfactory Performance or Conduct During Probationary Period
In contrast, when an agency decides to remove an employee serving a probationary or trial period because the employee’s work performance or conduct during the period was unsatisfactory, the employee has fewer procedural protections. In that situation, the employee is only entitled to notice as to why the employee is being removed and the effective date of the removal. The information in the notice as to why the employee is being terminated shall, at a minimum, consist of the agency’s conclusions as to the inadequacies of the employee’s performance or conduct. See 5 CFR § 315.804. This kind of removed employee only has the limited appeal rights set forth in 5 CFR § 315.806.

Probationary Employees in the Transportation Security Administration
The Transportation Security Administration was created by the Aviation and Transportation Security Act of 2001 (“ATSA”). Unlike most federal employees who are covered by Title 5 of the United States Code, ATSA placed TSA employees outside of Title 5’s protections. Most TSA employees are in the screening workforce and are covered by Section 111(d) of the ATSA, which states: “Notwithstanding any other provision of law, [TSA] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code.”

What does that mean? It means that the TSA is allowed to issue whatever employment policies it deems fit and that that TSA employees do not have the same, if any, civil service protections that other federal employees enjoy. For example, per TSA policy, at any point during the basic trial period when a supervisor determines that an employee’s performance or conduct is unacceptable, the supervisor may initiate a removal. The notice of removal must be in writing and briefly states the underlying reason(s) for the removal and the effective date. There are no other requirements and the employee does not have appeal or grievance rights with respect to the removal.

Other Options for Probationary Employees
There are several other options for removed probationary employees. If the employee believes the removal was discriminatory and based on race, religion, national origin, sex (including pregnancy, gender identity, and sex stereotyping), age, disability, genetic information, and/or reprisal, the employee can file an Equal Employment Opportunity complaint. A probationary employee could also file a whistle blower complaint, a USERRA complaint based on military discrimination, or there otherwise may be issues with the way the agency calculated the employee’s probationary period which the employee could challenge.

Which is Better - A Disability Annuity, New Job, or Both?

By Michelle (“Mickey”) Bartlett, Clark Hill, PLC • 22 Jun, 2022
Michelle Bartlett and Nicholas Wieczorek Disability Annuity for federal employees

A New Phone Number and Direct DOL Online Communication

By Jesse Slade • 28 Sep, 2020
Effective 09/28/2020, you can electronically receive and respond to letters from OWCP directly through your ECOMP Dashboard. If OWCP sends you a letter requiring a response, it will now appear in your ECOMP dashboard under the “Action Required” tab. You can respond online and attach documents to your response. A video tutorial is also available in ECOMP’s Help Menu under User Guides / Injured Worker / Introduction. If OWCP sends you an informational-only letter, it will only appear in your Case View, which you cannot access from your dashboard. To access your Case View, you must click on the case number from your dashboard. The second change also takes effect today, September 28, 2020, when OWCP will start using 202-513-6860 as the sole telephone number where you can reach them from 9:30 a.m. – 6:30 p.m. ET, Monday – Friday (except for federal holidays). This new voice line will replace the current 12 FECA district office telephone numbers and provide you direct access to your assigned Claims Examiner.

PSOB grants benefits to families of public safety officers lost to COVID-19

By LEOS Protection • 14 Aug, 2020
PUBLIC LAW 116–157 AUG. 14, 2020 - The Safeguarding America’s First Responders Act was signed into law clarifying COVID-19 related entitlements and benefit claims.

Federal Employees Performing Military Duties During COVID-19

By Jeffrey J. Lorek - Clark Hill • 15 Apr, 2020
Federal Employees Performing Military Duties During COVID-19
DC Capital blossoms

COVID-19 FECA, Telework, & Hiring Guidance from Federal Agencies

By Ivy Hensel - Associate Attorney • 10 Apr, 2020
COVID-19 FECA, Telework, & Hiring Guidance from Federal Agencies
supreme court facade

SUPREME COURT SAYS FEDERAL WORKERS CAN SUE OVER “ANY” AGE BIAS

By Jeremy Thompson - Senior Attorney • 08 Apr, 2020
SUPREME COURT SAYS FEDERAL WORKERS CAN SUE OVER ANY AGE BIAS

OWCP New Medical Bill Processing System

By Jesse Slade - OWCP Specialist • 07 Apr, 2020
On April 27, 2020, OWCP will launch its new Workers’ Compensation Medical Bill Process system, (WCMBP). This begins with transferring all medical bill process services to OWCP’s new bill pay contractor, CNSI. The new system will allow claimants, survivors and authorized representatives to submit bills for reimbursement, track authorizations, check eligibility, view case status and view bill history. If you haven’t done so, you will need to register with OWCP Connect to authenticate to the new system. If you aren’t signed up with OWCP connect, you will not have access to the new system. Here is the OWCP Connect link: https://owcpconnect.dol.gov/owcplogin/ You will be receiving a welcome letter with a Medical Benefits ID card, (MBIC). This card will have a case ID number, which will identify you in the new system and you will need to provide a copy of your ID card to your providers. Your providers will also be receiving letters explaining how to access the new system and how to register with the new system. The letters and ID cards are scheduled to be mailed out prior to 04/27/2020 You can go to https://prod.wcmbp.com/outreach for webinars and information pertaining to the transition. This link will be available until April 24, 2020. Conduent (the current bill pay contractor) will only provide OWCP pharmacy bill processing services and will be utilizing a new web address URL and new mailing address. The new web address for Conduent will be https://owcprx.dol.gov OWCP Pharmacy providers should begin using the new PO Box now. Any submitted pharmacy bills and/or correspondence sent to the old OWCP Central Mailroom PO Box after April 17, 2020 will be returned unprocessed. OWCP pharmacy-related bills and pharmacy correspondence should now be mailed to: Department of Labor Pharmacy Bill Processing, DFEC PO Box 8308 London, KY 40742-8308

TSA Canine Officer Frank Boccabella III

By John Casaretti • 04 Apr, 2020
The LEOS Protection team is stunned and saddened by Frank's passing, and our heart goes out to his loved ones. Please keep Frank's wife and family in your thoughts and prayers. Frank had a heart of gold, and will be sorely missed. In 2018, Frank helped organize TSA Canine Officers under LEOS Protection and even set up a LEOS seminar in Newark NJ. Frank had suffered a workplace injury, and LEOS helped him receive the federal benefits he was entitled to. He was very grateful, and became a big supporter of LEOS Protection. What I liked most about Frank was how genuine he was, nothing fake about him. He always had a smile, and was upbeat and positive throughout all of his trials. He was a big teddy bear, and he was loved and respected by all of his coworkers. He loved the dogs he worked with, and looked forward to going to work and making a difference. Frank was taken away from us far too early. His passing from COVID-19 is a shock and a loss to the entire federal community. If you are symptomatic, please get to a testing facility immediately so you can receive treatment as early as possible. Call or email LEOS for immediate assistance with filing any COVID-19 related claims to ensure that your loved ones are provided for. Stay safe

Relief Checks For OWCP/Social Security Recipients

By Jesse Slade - OWCP Specialist • 02 Apr, 2020
If you rely on non-taxable government income, i.e., SSI and OWCP compensation, you may still qualify for a relief check. Relief checks are going to be based on adjusted income on tax returns. If there is no tax return, they will use the 1099 form from Social Security. Amounts are as follows: $1,200.00 if single at $75,000.00 $2,400.00 if married filing jointly at $150,000.00 $500.00 per child 16 years or younger The $1,200.00 amount is reduced $5.00 per $100.00 for incomes above $75,000.00 if single and $150,000 married, filing jointly. There is no relief check for incomes over $99,000.00 with one child if single or $198,000.00 married, filing jointly. Those with direct deposit who qualify will have their checks deposited directly into their bank accounts. Those without direct deposit will be mailed a check. They expect mailed checks to take much longer; current estimates are up to five months to receive a check in the mail. The Treasury will be setting up a web-based portal where those who do not have direct deposit can sign up for direct deposit. We will post that information when it becomes available. Payments are expected to begin in the next two weeks. Don’t fall for scams Coronavirus relief check scams are already popping up. Currently, scammers are contacting people (usually by phone) pretending to be from the IRS or other government agency telling people they need their bank account or other personal information to deposit their check. If you’re entitled to a relief check, it will be automatically deposited or mailed to you, there is nothing you need to do to receive your relief check. The government will not be calling you for information and if anyone does, they are a scammer, plain and simple.
One Flew over the cuckoo nest nurse

The OWCP Field Nurse Program is Voluntary

By Jesse Slade - OWCP Specialist • 27 Mar, 2020
The OWCP Field Nurse Program is Voluntary
More Posts
Share by: