A bill passed by the House of Representatives and advanced to the Senate could double the length of the probationary period most federal employees go through before they are granted competitive status, which would also grant agencies more time to fire or demote anyone who doesn’t meet their standards with little recourse available to the affected employee.
The EQUALS Act of 2017 would extend the probationary period from one year to two years for new government employees, federal employees promoted to supervisory and managerial positions, and employees promoted to the Senior Executive Service. Agencies would also be required to notify supervisors whether an employee will successfully complete the probationary period 30 days before it is set to expire. If the employee does not meet the requirements of the position, the agency can demote or remove the employee from service with a simple, written notification. The employee would not be allowed to appeal the decision to the Merit Systems Protection Board (MSPB) because he or she would not have gained permanent status.
The bill’s objective is clear. It gives agencies more time to determine if a probationary employee will be a good fit for federal employment and the job for which they were hired and it allows them to quickly remove the employee if it is decided he or she will not work out. However, probationary employees do have some options for appealing adverse workplace actions available to them.
A probationary employee can file an appeal to the MSPB if he or she was fired for political reasons or reasons of their marital status. This is not a change in law. Probationary employees can also file complaints with the Equal Employment Opportunity Commission (EEOC) for any adverse action if they believe the adverse action was the result of discrimination (based on race, color, national origin, religion, gender, age or disability). These rights are currently in place and are not altered or taken away by the EQUALS Act.
As with any adverse action occurring in the course of federal employment, it is best for a probationary employee to contact a federal labor and employment attorney when first notified that he or she will be demoted or fired. Even though rights to appeal are more limited than those employees with protected status, an experienced attorney knows the rules surrounding probationary status and the avenues open to them that the EQUALS Act will not take away.
Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 2027871900. The information in this column is not intended as legal advice.
