Agencies Warned About Firing Probationary Employees

Most federal employees spend a year on probation after being hired, and the rules for job tryouts make it relatively easy for managers to weed out poor performers and show them the door.

But a new report suggests that agencies can no longer assume they have such leeway. Two federal court rulings have found that federal employees on probation may be entitled to challenge the merits of their dismissal, just as a permanent civil service employee can.

"Agencies must now proceed with caution when terminating probationary employees because the cost of violating a probationer's pre-termination procedural rights can be high," said the report by the Merit Systems Protection Board, released this week.

In addition to paying the cost of litigation, federal agencies may be ordered to reinstate people in their jobs and give them back pay and benefits, the report said.

The MSPB report said that "agencies are still learning about the impact" of the court rulings, though one case was decided in 1999 and the other in 2003.

In the two cases, the U.S. Court of Appeals for the Federal Circuit interpreted federal employment law and regulations to allow certain employees on probation to challenge agency decisions to end their employment.

An employee in one of the cases had been hired by the Health and Human Services Department in 1991 and was subject to the completion of a one-year probationary period. The employee completed probation, and in 1999, she asked to be moved to a job with the Air Force.

Because the employee was taking a new assignment, the Air Force decided to place her on probation for a year. About six months after the hiring, the Air Force let her go and said the termination had come during her probationary period.

The employee appealed, and the Federal Circuit found that she should be treated as a regular civil service employee, with rights to challenge her dismissal, because she had served for longer than a year in the government.

The MSPB report pointed out that the Office of Personnel Management has not amended federal regulations or the advice it provides agencies about how to determine when employees qualify for full job rights. The report recommended that OPM modify regulations to conform with the court rulings.

Kerry B. McTigue, general counsel at the OPM, said officials are reviewing the MSPB report and "truly considering our options." But he added that the OPM would prefer to have Congress change civil-service law to clarify probation periods and when a person gains procedural rights to challenge management's decisions.

The Bush administration proposed a legislative fix in 2005 as part of a larger, draft personnel bill that Congress has not taken up, McTigue said. New personnel laws for the Defense and Homeland Security departments do make clear the rules for job tryouts for those large workforces, he said.

The merit board regularly provides reports to the president and Congress on civil-service issues, and board members hear appeals from federal employees who face major disciplinary action by their agencies.

The Numbers on Open Season

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More than 690,000 federal employees and retirees signed up for dental and vision insurance benefits during the program's inaugural enrollment season, the OPM announced.

Interest in the new insurance program increased in the closing days of the enrollment period, jamming the program's Web site and telephone line. The snarl prompted the OPM to accept "belated enrollments" through Dec. 22 rather than end enrollments on Dec. 11 as planned.

Congress approved the program after learning in hearings that dental benefits provided to federal employees had not kept pace with benefits offered in the private sector. The new program permits federal employees to use pretax payroll deductions to pay dental and vision premiums.

The OPM also announced that 227,000 federal employees have opened flexible spending accounts for 2007 to help pay their out-of-pocket medical bills and to help pay dependent care costs. Flexible-spending enrollments are up by 26 percent over the previous year, the OPM said.

Stephen Barr's e-mail address isbarrs@washpost.com.