Trump’s Probationary Staff Overhaul Reflects Lessons From Court

The Trump administration wants to make it easier for supervisors in the federal workforce to dismiss probationary employees after a federal judge blasted agencies for firing tens of thousands of those workers for poor “performance.”

Fired probationary employees, people who are new to their position, reported receiving identical letters in February stating performance was to blame for their termination, regardless of previous praise from their bosses. That led to a temporary setback for the Trump administration’s push to slash thousands of public sector jobs.

Now, agencies can dismiss probationary workers for four reasons, including if they don’t serve the “needs and interests of the agency,” according to President Donald Trump’s April executive order.

The order requires supervisors to actively certify that a newly hired or transitioned employee advances the public interest. Otherwise, those workers would be automatically terminated once their probation period ends.

“There’s no bar” to dismiss them, said Kathryn Troutman, a consultant who helps people secure federal jobs.

The executive order will help agencies avert the same pushback the administration received from courts in recent weeks, federal-sector employment lawyers said. A California judge in April called the notices a “sham” and ordered agencies to write letters to the dismissed employees stating they weren’t let go due to performance.

The Trump administration is “building a case to avoid that” in the future, said Justin Schnitzer, a federal employment attorney in Maryland.

The White House press office did not immediately respond to a request for comment.

‘Get-Out-of-Jail-Free’

Probationary employees are already easier to fire than their longer-serving counterparts, according to civil service rules. The probationary period typically lasts a year, though it extends to two years for members of the excepted service. Supervisors can fire employees during that time for poor performance or conduct, with “minimal documentation,” said Nancy Segal, an HR consultant for federal agencies and employees.

I used to “call it a ‘get-out-of-jail-free card’ for supervisors,” Segal said.

The dismissal process gets more complex after the employee passes the probationary period, when they get full job protections. Supervisors must collect evidence, describe violations in writing, and give the employee a chance to respond, according to the law. Dismissed workers can appeal to the Merit Systems Protection Board, the independent panel that mediates disputes between federal workers and their employers.

Probationary workers generally can’t appeal their dismissal, with few exceptions. The OPM pointed out that reality a few days after Trump’s Inauguration, when it directed federal agencies to make lists of probationary workers.

Federal workers who had been lauded by supervisors before the first-round layoffs could serve as a basis for appeals that Trump’s order would avoid, Schnitzer said.

“You had these employees who were fired right after they got glowing reviews from their bosses,” he said. “That doesn’t jive with the regulation.”

Ongoing Litigation

The OPM later ordered agencies to dismiss probationary staff, adding that they should consider the president’s goal of “dramatically” reducing the size of the federal workforce when deciding which employees to cut.

The firings prompted the US District Court for the Northern District of California Judge William Alsup in March to order six agencies to rehire 16,000 probationary employees. Alsup called the template termination letter the Trump administration’s HR office gave federal agencies a “sham.”

The US Supreme Court later sided with the Trump administration. The high court paused Alsup’s directive while the US Court of Appeals for the Ninth Circuit considers the appeal.

The executive order “gives them way more flexibility after the fact to do what they wanted to do and they got nailed for doing improperly” by the court, Segal said.

A related case is making its way through the courts on the East Coast. That lawsuit involves 20 federal agencies and more than 30,000 probationary workers.