The Trump administration’s Office of Personnel Management has revised its guidance on probationary employees, now stating that OPM was not directing agencies to fire federal workers.
An update to OPM’s Jan. 20 memo on Tuesday adds a paragraph clarifying that any decision to fire employees should be left to individual agencies.
“Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees,” the updated memo states. “Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.”
The original version of OPM’s Jan. 20 memo told agencies to submit lists of all their employees currently within their probationary periods, while also reminding agencies that probationary workers are the easiest to fire from their jobs.
An OPM spokesperson said the clarification comes after a court ruling last week, as well as what the agency described as “public misinformation.”
“It has always been up to agencies whether to take performance-based actions against probationary employees,” the OPM spokesperson told Federal News Network.
OPM’s new update to its memo, however, contrasts with previous reports that OPM was advising agencies to fire their probationary employees. Numerous agencies, in their internal communications and in some cases in testimony to Congress, interpreted the OPM communications as directives or orders.
In February, OPM asked agencies to send lists of their probationary employees, and whether they wanted to keep them. In some cases, agencies were given a 200-character limit to explain why they wanted to keep any probationary employees. OPM then met with agencies and provided them with guidance to terminate probationary employees. At the time, a source familiar with the situation at OPM described the actions as “soft guidance,” stating that agencies have the ultimate decision on whether to fire their workers.
But the guidance led to the terminations of tens of thousands of probationary employees across government over the last several weeks. Many of the fired employees had joined the federal workforce within the last one to two years. Others who were removed from their jobs had spent years or even decades in public service, but had recently accepted a different federal position that put them back into a probationary period.
A federal judge ruled last week that OPM’s guidance on terminating probationary workers was “ultra vires,” or outside of OPM’s legal authority. The judge said OPM’s communications to agencies on Jan. 20 and Feb. 14 regarding the termination of probationary workers amounted to illegal directives and called for OPM to rescind the memos.
The Merit Systems Protection Board last week also stayed the termination decisions for six fired federal workers, all from different agencies. In its decision, MSPB said the Office of Special Counsel’s case appeared to have shown that agencies were using the probationary employee terminations as a back-door method of accomplishing a reduction in force (RIF).
Kevin Owen, a partner at Gilbert Employment Law, viewed OPM’s new revision to the probationary employee guidance as an attempt to walk back its previous actions.
“I think they realize that is going to be a significant problem for them in litigation on these issues going forward,” Owen said in an interview. “The alternative arguments we’re seeing is that employees being terminated for performance is a subterfuge for a RIF. I think that’s an argument that is also going to have as much, if not more, merit than the ‘ultra vires’ argument.”
The American Federation of Government Employees, a plaintiff on the lawsuit challenging the firings of probationary employees, said OPM’s revision of its Jan. 20 memo was a “clear admission” that the agency had directed agencies to carry out governmentwide terminations.
“Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired,” AFGE National President Everett Kelley said in a statement.
Because of jurisdictional issues involved in the lawsuit, the court order from last week for now only applies to affected employees in the National Park Service, Department of Veterans Affairs, Bureau of Land Management, National Science Foundation, Small Business Administration and Department of Defense.
And at least one agency has already taken action to rehire employees in response to the federal judge’s ruling. On Monday, NSF announced it had reinstated 84 federal employees who were fired two weeks ago. Those employees received backpay and did not see a break in service, NSF said.
The reinstated probationary workers represent just about half of the total number of staff NSF fired. The remaining terminated employees were “intermittent experts” and not full-time staff, NSF said, and they will remain out of their jobs.
“NSF welcomes the return of our probationary employees who will help ensure the United States remains the global leader in scientific discovery and innovation,” an agency spokesperson said.
Jesús Soriano, president of AFGE local 3403, which represents over 1,000 NSF workers, said he looks forward to the “prompt reinstatement of the hardworking scientists and administrators that were illegally terminated.”
“American cannot remain a global leader unless we invest in science, technology and innovation,” Soriano said.
But more broadly, Owen said he believes the firings of federal employees will continue, particularly after the Trump administration directed agencies to put together plans for conducting large-scale RIFs.
“I think a lot of these employees are going to be ping-ponging back and forth between administrative leave and unemployment until something causes the administration to stop the mass firings of federal employees — whether it’s a court order, intervention by Congress, or a complete and utter natural or national catastrophe once people realize that federal employees are necessary to keep the economy running and to keep the American people safe,” Owen said.
Since the Jan. 20 memo was first published, Owen said he’s spoken with hundreds of federal employees about their experiences.
“They are, I think, equal parts demoralized, scared and angry,” Owen said. “As this progresses and as the administration continually engages in tactics that are meant to make working a federal job unattractive, they’re hoping that they’ll just voluntarily quit. That’s having a major impact on federal employees.”
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