The probationary or trial period is a set period of time in which an agency is responsible for assessing a candidate for a finalized appointment in the Federal civil service, and deciding either to continue or terminate the candidate’s employment.1 Thus, the probationary period is the final stage of the assessment process under which a candidate’s ability, knowledge, and skills are observed and a final selection decision is made in light of those observations. Because this period involves the evaluation of a candidate based upon performance of the actual duties of the position, it is one of the more reliable and valid assessment tools available to Federal supervisors.2 Such an assessment tool can be especially useful with respect to both new employees and employees who are appointed to new and different positions. Proper use of the probationary period promotes the merit system principle that selection “should be determined solely on the basis of relative ability, knowledge, and skills.”3 In addition, having an effective and well-understood probationary period is important because supervisors are much less likely to remove a problem employee with full appeal rights.4 Thus, if the Government does not have a way to quickly and easily correct mistakes that are made in the hiring process, it may be left with a situation that can negatively affect the efficiency of the organization for a long time. 

Consistent with the notion that the probationary period is a part of the assessment process, probationary employees have generally had limited pre-termination procedural rights and post-termination appeal rights as compared to employees with finalized appointments. This has made it easier for agencies to act quickly, and with a greater expectation of finality, if the employee does not demonstrate his or her fitness or qualifications for continued employment. However, two Federal Circuit decisions, Van Wersch v. Department of Health & Human Services, 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), pet. for reh’g en banc denied, 329 F.3d 1354 (Fed. Cir. 2003), provide that some individuals who have traditionally been thought of as probationers with limited rights may actually be entitled to the same rights afforded to employees with finalized appointments. Such rights include having: (1) An action taken against them only for such cause as will promote the efficiency of the service; (2) at least 30 days’ advance written notice of the reasons for the proposed action; (3) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits or other documentary evidence; (4) the right to be represented by an attorney or other representative; (5) a written decision, and the specific reasons for the action, at the earliest practicable date; and (6) the right to appeal the action to the Merit Systems Protection Board (MSPB or the Board).5 ?These Federal Circuit decisions have made it more challenging for agencies to terminate probationers, or to take other appealable adverse actions, swiftly and with the same expectation of finality as before. 

In light of these two Federal Circuit decisions, agencies must now proceed with caution when terminating a probationary employee because the cost of violating an employee’s pre-termination procedural rights, even inadvertently, may be quite high. Agencies may ultimately be ordered, if an appeal is filed with the Board or the Federal Circuit, to treat them as employees with finalized appointments and return them to their positions with back pay and benefits. In order for the probationary period to continue to serve as an effective assessment tool in the hiring process, the Board has prepared this report to help Federal agencies: (1) Understand how the law now defines individuals who have full pre-termination procedural and post-termination appeal rights; (2) use that understanding to calculate when their probationers will become entitled to such rights; (3) assess their probationers within the proper time period; and (4) terminate those probationers with performance or conduct deficiencies before they obtain such rights. 

This report includes three major sections. The first section discusses how the statutory definition of an employee with full procedural and appeal rights has been interpreted differently in recent years to include probationers who, in the past, would have had only limited procedural and appeal rights. It also addresses several Board decisions that explain how to determine whether a probationary employee has such procedural and appeal rights. The second section discusses additional probationary-period issues that OPM and other agencies may encounter. These include the need to update Federal regulations, potential problems that may arise if agency policies do not establish a trial period for certain employees in the excepted service, and the risks involved in waivers of appeal rights for new hires. This section also addresses the potential impact of the Federal Circuit’s decisions on merit-based hiring. Finally, our third section contains recommendations for OPM, Federal agencies, and Congress in addressing some of the challenges presented by the court’s decisions in Van Wersch and McCormick.   [Report available in HTML or PDF]