Broadly speaking, federal employees who have completed a probationary period and/or have 1-2 years of federal service should meet the definition of an “employee” with appeal rights under applicable laws, to include 5 U.S.C. § 7511. This includes, most importantly, the right to advance notice and the opportunity to respond before they can be fired for performance or conduct.
Identifying whether someone is probationary or an employee with appeal can often be complicated. Below, we provide some general guidance on where to start if you think that you were wrongly terminated as a probationer.
Basic Principles:
The most important distinction is determining what type of appointment authority you were hired under, including your original appointment and your current appointment. There are two primary categories for civil service employees:
- Competitive service (“CS”) – employees appointed to the competitive service generally serve a single probationary period during their first year of service. See 5 U.S.C. §3321; 5 C.F.R. § 315, Subpart H. Former federal employees who are reinstated under 5 C.F.R. § 315.401 do not need to serve a new probationary period. Employees who have been continuously employed may be able to “tack” periods of service for purposes of completing the 1-year probationary period. If you move from one competitive service position to another competitive service position, you should generally not have to serve a second probationary period.
- Excepted service (“ES”) – Excepted service employees serve a 2-year trial period upon appointment to the excepted service; preference eligible veterans serve a 1-year trial period. If you move from one excepted service position to another excepted service position, you generally should not have to serve a second probationary period so long as you remained in a similar position. Excepted service also includes employees under various special appointment authorities, such as Schedule A.
- If you move from the competitive service to the excepted service, you are generally required to serve a new 2-year trial period.
Your probationary period ends upon the end of your last tour of duty before your one year anniversary. For example, if your probationary period ends on a Monday, this means that you become an employee with appeal with rights at 5pm Friday. In general, when you are terminated near the end of your probationary period, it is good to check with a federal employment lawyer to make sure you didn’t actually complete your probation.
If you think that you may have completed your probationary period, here is what to do:
- Gather the information necessary to show you have satisfied service requirements. This means assembly copies of your SF-50’s (notice of personnel action) reflecting your appointment(s), transfers, and any changes in your employment status. This includes your initial appointment, subsequent appointments or changes in tenure status or job category. Please redact your SSN and date of birth and assemble in some form of chronological order. If you find copies of job announcements or formal job offers, also save those in case you need them in the future (they could be useful for an MSPB appeal, see below).
- Write out a concise chronology of your federal service. Start with the date of your initial appointment, noting the agency, job, type of appointment, and whether there was any statement about being subject to a probationary or trial period. Continue with your other appointments and transfers, noting any breaks in service and/or changes in appointment authority (e.g, moving from the excepted to competitive service). Note if your appointment was to a temporary position or a NTE (not to exceed). For example:
- 8/1/2022 – appointed to a competitive service GS-1102-12 contracting officer position with DOT. Subject 1 year probationary period
- 8/1/2023 – completed probationary period
- 8/1/2024 – transferred with no break in service to a _____ service position as a GS-XXXX, [Title], [Agency]. This was a direct hire position.
- Now that you have your chronology and supporting documentation, you should also write a short summary explaining why you believe that you were not probationary.
- Take your narrative, to include why you believe that you were not probationary, your employment timeline, and supporting documentation and share it with individuals who may be able to assist you:
- Email your agency – either HR or a contact listed on the termination letter, stating that you believe you were wrongly terminated as a probationer, providing your chronology and explanation. Be sure you have redacted your PII if you attach your SF-50s.
- If you are in a bargaining unit, reach out to your union.
- Follow up with a federal employment attorney with your package of information and the status of your outreach to your agency and union.
You have 30 days from the date you learn that you had appeal rights to file an appeal with the Merit Systems Protection Board. You will need to demonstrate that you were not probationary when you were terminated, and thus were an employee with appeal rights entitled to due process. You can prove this by relying on your employment history, which you’ve assembled per steps 2 and 3. If you can do so, the Agency will likely be ordered to restore you to duty because you were entitled to advance notice and an opportunity to respond before they could terminate you.