OPM outlines expectations, timeline for agencies to adopt Trump’s changes on probationary employees
In new guidance, OPM specified the four factors agencies should consider when deciding whether probationary employees should keep their jobs.
Agencies are facing a roughly two-week deadline to show the Trump administration how they plan to implement coming changes for probationary employees.
By May 16, agencies are expected to report their plans for adding a new “affirmative” certification requirement for probationary employees. Agencies are also expected to detail how they intend to train supervisors and HR practitioners on the coming changes, according to new guidance the Office of Personnel Management published Tuesday.
The guidance outlines more detailed expectations for agencies to update how they manage probationary periods following President Donald Trump’s executive order last Thursday. That order called for the creation of “Civil Service Rule XI” and added a hurdle for probationary employees to clear before they become tenured employees. Agencies will now be required to review and actively sign off on probationary workers’ continued employment before they can reach a tenured employment status.
“Agencies are to use probationary and trial periods as an extension of the hiring process that requires agency certification before employees continue their federal employment beyond the probationary or trial period,” OPM’s new guidance reads.
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OPM also specified the four key factors agencies need to consider when deciding whether a probationary employee should keep their job:
An employee’s performance and conduct
Needs and interests of the agency
Whether the employee’s continued employment would advance organizational goals of the agency or the government
Whether the employee’s continued employment would advance the efficiency of the service
Under current regulations, probationary employees can only be removed from their jobs for performance or conduct. But OPM now states that “agencies may decide not to finalize a probationer’s employment for reasons unrelated to their personal performance or conduct, such as the operational needs of the agency.”
Additionally, if agencies decide to remove probationary employees based on one of those reasons, they no longer need to tell probationary employees why they are being let go. Only the effective date has to be disclosed to probationary employees, which could be as soon as “immediately.”
“There is no longer a requirement that the employing agency provide a terminated probationer with ‘the agency’s conclusions as to the inadequacies of his performance or conduct,’” the guidance states.
OPM’s guidance also includes several new templates agencies can give to probationary employees, depending on whether they are approved for continued service once they reach the end of their probationary period. The template for probationary employees who get terminated aligns with the new directions that agencies no longer have to give a reason for a termination.
Template of termination notice to probationary employee. (Source: Office of Personnel Management)
The updates stemming from the executive order also remove a requirement for agencies to notify probationary employees in the competitive service “of the reasons for a proposed adverse action when it is based on pre-appointment conditions,” OPM wrote in Tuesday’s guidance.
Moving forward, probationary employees will also have to meet with an agency head — or a designee — prior to the end of the probationary period to discuss the prospects of their continued employment. The new guidance will apply to employees whose probationary periods end on or after July 23, OPM said.
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“I do at least hope that these decisions get put back in the supervisor’s hands,” Debra D’Agostino, a partner at Federal Practice Group, said in an interview last week. “This should be a supervisory decision because the supervisor is the one actually working with this employee, seeing this employee’s work, knowing if this person’s performance is up to snuff and if they are a good fit with the role. This should not be a decision made by OPM.”
The changes come after tens of thousands of probationary employees were terminated from their jobs on the basis of “performance.” Agencies’ rationale for letting go of probationary employees resulted in multiple lawsuits that led to the employees’ initial reinstatements, many of which were later walked back.
OPM also plans to set the regulations for how and when probationary employees can appeal their terminations, according to the new guidance.
“The director of OPM may by regulation prescribe circumstances under and procedures by which employees terminated from a probationary or trial period may appeal such termination,” OPM wrote. “Except as otherwise required by law, such appeals shall be the sole and exclusive means of appealing terminations during probationary or trial periods.”
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