Agencies Have Authority to Fire Probationary Employees at Any Time: OSC Brief

The Office of Special Counsel (OSC) reversed course and now believes that federal agencies have the authority to fire federal employees on probation at any time and that their firings do not violate federal law.  

The reversal comes after President Trump fired former Special Counsel Hampton Dellinger and replaced him on an acting basis with U.S. Trade Representative Jamieson Greer. 

OSC is the federal agency in charge of protecting employees from prohibited personnel practices (PPP). In February, it fought to save the jobs of six probationary employees, arguing that the firings constituted PPPs, because probationary employees could only be terminated if performance or conduct demonstrated they were unfit for federal service. 

However, that position is long gone with new leadership in charge. In a new amicus brief filed with the Merit Systems Protection Board (MSPB), OSC says it believes that terminations of probationary employees are in compliance with statutory and regulatory requirements, and therefore do not constitute a prohibited personnel practice. OSC believes terminations can occur “with very limited restrictions on the reasons for termination.”

OSC also wrote that agencies may be in violation for not firing enough employees. 

“Agencies appear to have failed to abide by the regulatory mandate to use the probationary period as a tool to screen out inadequate or unsuitable probationers,” stated the brief. “Indeed, these violations have been ongoing and systemic for a very long time, and petitioners’ request for relief would likely compel agencies to continue these violations.”

As the federal agency in charge of policing prohibited personnel practices, OSC has received more than 2,000 complaints about the terminations of probationary employees, with employees claiming the firings were unlawful. 

Current federal rules state that agencies should terminate employees who fail to demonstrate their qualifications for continued employment on the basis of performance or conduct. 

Attorneys Seek to Strike OSC Brief

Meanwhile, attorneys for fired probationary workers filed a motion to strike the OSC brief from the MSPB docket, arguing that OSC did not have the authority to file such a brief because it involves a PPP outside of whistleblower retaliation. 

OSC disagrees. “We took steps to ensure that we followed the appropriate procedures for doing so,” said OSC spokesperson Corey Williams.