Six probationary federal workers who were fired as part of agencies’ mass terminations will get their positions back — at least for the time being — after the Merit Systems Protection Board found that there’s a credible argument that their firings were unlawful.
The six employees, all of whom worked for different federal agencies, are something of a test case for the Office of Special Counsel, which has argued that employees must be given a specific performance reason in order to be removed from service during their probationary periods.
In the cases of the six, no such reasons were given, and OSC has said it is looking for ways to bring larger numbers of similar cases to MSPB for possible reinstatement.
In a decision Tuesday, which stayed the termination decisions for the six workers, MSPB said OSC appeared to have shown that agencies were using the probationary employee terminations as a back-door method of accomplishing a reduction in force (RIF).
“According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same,” board member Raymond Limon wrote on behalf of the MSPB. “Particularly considering the deference that must be afforded to OSC at this initial stage, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice.”
None of the reinstatements are final; the board will still need to consider the merits of each employee’s case. Under federal regulations, however, the MSPB is required to stay federal agencies’ firing decisions whenever OSC gives the board “reasonable grounds” to believe there’s evidence of a prohibited personnel practice.
“I am very grateful the MSPB has agreed to postpone these six terminations,” Special Counsel Hampton Dellinger said in a statement. “These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done. Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.”
The six employees involved work for the Department of Education, the Department of Energy, the Department of Housing and Urban Development, the Office of Personnel Management, the Department of Veterans Affairs, and the Department of Agriculture.
OSC said the first six employees — all of whom work for different federal agencies — were terminated at about the same time, with written notices that used very similar language. The office said none of the termination paperwork complained about specific performance issues, and only three of the six mentioned performance at all.
The office said the timing of the firings, along with thousands of other federal employees, makes it apparent that agencies have been using employees’ probationary status as a pretext for RIFs, but without using the government’s legally-mandated RIF procedures. Those procedures create specific orders of precedence for which employees will be removed first during a RIF, and give higher levels of protection to, for example, employees with veterans precedence and those with high performance reviews.
“Each agency has the right to decide whether a RIF is necessary and when the RIF will take place,” OSC attorneys wrote in their petition to the MSPB last week. “However, agencies do not have discretion to bypass RIF procedures when they are reorganizing or reducing the size of components based on lack of work or budgetary concerns.”
The petitions acknowledge that probationary employees have fairly limited rights when it comes to protections from termination or to appeal their terminations, but the government does need to meet some minimum requirements. Federal regulations require, for example, that agencies tell fired probationary employees what specific performance problems led to their termination.
The post MSPB puts brakes on at least some probationary feds’ terminations first appeared on Federal News Network.