Probationary appeal rights under further threat by OPM proposal

The Trump administration last week proposed new rules that would strip newly hired federal employees of their access to the Merit Systems Protection Board and further erode the grounds upon which they can challenge adverse personnel actions.

For the first year of federal employment, new hires to the government already generally enjoy fewer removal protections than their tenured counterparts. Despite that, agencies may only terminate a probationary employee over performance or conduct.

Last April, after multiple judges reverted the Trump administration’s efforts to purge probationary employees across government by the thousands, President Trump signed an executive order aimed at making it easier to remove them, adding agency needs and organizational goals to the list of reasons managers may cite in said firings.

The Office of Personnel Management last week published a proposed rule in the Federal Register that would strip the Merit Systems Protection Board of its jurisdiction over adverse actions taken against probationary workers, and limit employees’ grounds to challenge their removal to their political affiliation or marital status.

Under the proposal, OPM would handle all probationary employee appeals internally under a much shorter process that excises their right to a hearing or discovery process.

“OPM will only adjudicate appeals that allege either discrimination based on partisan political reasons or marital status; or an agency’s failure to follow procedures for terminations based upon pre-appointment reasons,” the rule states. “[Additionally], when OPM adjudicates an appeal, it will do so based on the written record without the need of extensive discovery. However, where OPM determines additional information is necessary, it may conduct an investigation or audit into an agency’s termination action.”

Michael Fallings, a managing partner at Tully Rinckey, a law firm that works primarily with federal employees, said the new proposal significantly narrows probationary employees’ options for challenging an unwarranted personnel action. The move of appeals from MSPB to OPM also strips those workers of seeking review from a federal court if they are unsuccessful in challenging their removal through the administrative process.

“If someone suffers an adverse action, they likely will need a discovery period to seek additional information, to provide their own testimony about why the action is improper and to question the management officials seeking the adverse action,” Fallings said. “Now that they’ve lost that opportunity—or may lose it—that does affect somebody’s ability to prevail [on appeal].”

The proposed rule also would block probationary workers from pursuing equal employment opportunity claims as part of their appeal to OPM. Instead, those who believe they have been discriminated against would be required to file those claims separately with the Equal Employment Opportunity Commission. Comments on the regulatory proposal are open until Jan. 29.

Fallings said that while the clear intent of the proposal is to reduce the number of adverse action appeals across government, it is likely that the opposite outcome takes hold.

“This is going to lead to more litigation and prompt more people to appeal or otherwise file complaints,” he said. “I think this administration wants to take every effort it can to remove probationary employees or limit their rights, but this will just cause more litigation.”