The Merit Systems Protection Board (MSPB) ruled favorably yesterday for terminated probationary federal employees. The ruling was significant as it could help other federal employees terminated while on probation. Terminated probationary employees should seek federal employment counsel to preserve their rights.
Probationary Employee Appeals
Usually, there is a narrow basis on which to challenge federal probationary period appeals. Most federal employees start in a probationary status that lasts one year before they are converted to permanent employees. During this probationary period, federal agencies can terminate them without much effort and for practically any reason. Probationary employees still have the right to challenge their terminations based on partisan political or marital status discrimination at the MSPB. Additionally, probationary employees can file appeals through the Equal Employment Opportunity (EEO) complaint process for discrimination or at the Office of Special Counsel (OSC).
Current Probationary Period Terminations
As most federal employees know, the government started firing probationary employees over the last 2 weeks. This resulted from a January 20, 2025 memorandum issued by the Office of Personnel Management (OPM) seeking lists of all federal agency probationary employees. In some federal agencies, the resulting terminations were across the board and in others they were more selective. In any event, the terminations were massive in scope. Approximately 220,000 federal employees who are currently in their probationary period might be affected. Some employees have filed appeals with the OSC or MSPB, which are pending review. In a case handed down last night, the MSPB stayed the probationary terminations of six employees based on intervention by the OSC.
What Did the OSC Do?
A number of federal employees filed a complaint about their probationary terminations with the OSC. The OSC agreed and took on the cases of six federal employees fired in their probationary periods. The OSC requested a stay of the terminations and asked that the government delay them because it appeared that the government had violated federal law. Specifically, the OSC alleged that the government was engaged in prohibited personnel practices under the U.S. Code. One of the major arguments that the OSC made was that the government attempted to conduct a Reduction-in-Force without providing probationary employees their rights and due process. The OSC made other arguments as well.
The MSPB reviewed the OSC request to stay the six probationary terminations and approved it. The MSPB Decision is listed here. The MSPB ordered that the six employees be returned to their positions for now. The stay is expected to last at least 45 days and perhaps a lot longer.
What are the Next Steps for Probationary Employees Fired?
Since the OSC received a stay of probationary employee removals from the MSPB, federal employees now seem to have a better chance of appealing the blanket terminations. Indeed, given the MSPB ruling, many federal probationary employees will argue that they were not provided RIF rights either. Many may also argue, given the public statements made, that the terminations were the result of political discrimination.
What is the Best Strategy for Probationary Employees Right Now?
We have been advising probationary federal employees that if they are terminated, they should consider appealing to the MSPB or OSC, depending on their situation. The process may not be fast, given that the OSC case is in litigation, but you could lose your right to challenge the termination if you wait beyond 30 days to file with the MSPB. The best advice is to seek legal counsel and ensure you preserve your rights in the best manner possible.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws, regulations and government policies are always subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation
