MSPB Studies Flash

Identifying a Probationer:  It is not Always Easy, but is Always Important

The purpose of a probationary period is to provide an agency with the opportunity to assess a candidate’s conduct and performance before an appointment is finalized.  Under 5 U.S.C. § 7511, most individuals in a probationary period are not “employees” and thus are not entitled to advanced notice or an opportunity to reply to charges before being removed from service. ¹ If a probationer is found wanting, he or she can usually be removed relatively easily.  In contrast, an employee is granted certain protections such as notice and the opportunity to reply before implementation of an adverse action, and if the agency fails to properly follow regulatory and statutory requirements before acting, the action often cannot be sustained.

For most people it will not be difficult to determine if a person is an employee entitled to certain procedures.  However, in some rare situations it can be complicated to identify whether someone is a probationer without procedural and appeal rights. 

Recently, in Calixto v. Department of Defense, the Board addressed the question of whether an individual appointed under a “direct hire authority” was a probationer without appeal rights. ²  The Board held that the law and OPM’s regulations were silent as to whether the appointment carried a probationary period, but found that the agency did notify the individual of a 1-year probationary period on the individual’s SF-50.  This left the Board with the question of whether the agency’s imposition of the probationary period was reasonable. 

The Board compared Calixto to Shelton v. Department of the Air Force, 382 F.3d 1335, 1336-37 (Fed. Cir. 2004), in which an agency imposed a new probationary period on an individual after a 13 year break in service.  In Shelton, the court held that, “[i]mposition of a reasonable condition to accommodate a special circumstance is not an illegal employment action.  A new probationary period was not an unreasonable condition after thirteen years away from the job.”  In Calixto, the Board held that imposing a probationary period on the direct hire appointee was also a reasonable condition because it is consistent with:

• The requirements for most new competitive service appointees;
• The nature of how new appointees have been treated as far back as the Pendleton Act of 1883;
• OPM’s guidance in the Federal Personnel Manual, which – before it was sunset – provided a probationary period for direct hire appointments; and
• OPM’s encouragement that agencies assess a new individual’s conduct and performance before finalizing an appointment.

The length of the period (one year) was found reasonable because 5 U.S.C. § 7511 grants appeal rights after one year in the competitive service. 

While a probationary period usually applies to new appointments, agencies should be sensitive to the possibility of rare exceptions to the rule.  Our 2007 report, Navigating the Probationary Period After Van Wersch and McCormick, discusses how individuals who have earned status as an "employee" may - under certain circumstances – be able to retain that status when accepting a new appointment with no break in service.

If an individual's status is unclear, agencies have the option to err on the side of caution. There is no statute or Federal regulation that prohibits an agency from providing a probationer with advanced notice and an opportunity to respond before removal.  However, an agency may find that denying these procedures to an employee with rights can be quite costly – especially if the agency is ordered to reinstate the employee with back pay.