The probationary purge

What current and former federal probationaries need to know

It was a hack job.

Last week, the Trump Administration fired nearly 10,000 federal workers across a number of agencies, focusing predominantly on probationary employees.

This was not the work of experts skillfully using a scalpel to trim the fat while ensuring that essential services could continue uninterrupted. This was not a firing that targeted poor performers. To the contrary, it was an amateurish mess.

Multiple agencies actually had to try to “un-fire” some employees when they belatedly realized they needed them. In fact, many of the termination letters citing poor performance as justification for firing went to employees who had received high performance ratings, with supervisors confirming that the justifications the agencies provided were false.

These cuts hit individuals who did not deserve to be fired. One fired USDA employee called it “a butchering of some of our best.”

The firings also make all of us less safe.

Weeks after the fatal plane crash at National Airport, the Administration began firing several hundred FAA employees, including “personnel hired for FAA radar, landing and navigational aid maintenance.”

The Department of Energy fired nuclear safety workers, but by the time they realized this was perhaps an existential threat to the future of humanity, they couldn’t figure out how to contact the former employees to bring them back.

Healthcare for veterans is poised to suffer after the VA cut around a thousand employees from a health system that already struggled with chronic staffing shortages.

These examples are just the beginning. The firings will harm countless people around the country and world. But right now, the purge is uniquely affecting the terminated employees and those who fear they are next.

This letter provides a brief overview of what a probationary employee is and what rights they have, highlights some anticipated challenges to the probationary purge, and provides some resources for terminated former employees.

Rights of probationary employees (including a new explainer)

Generally speaking, new government hires complete probationary periods to assess their performance before they accrue substantial civil service protections.

During this one- or two-year period, civil servants are referred to as “probationary employees.” Though some are new to federal service, many of these employees are experts in their field and are highly experienced professionals — like the nurse with over five years of federal service who had to switch agencies because the military ordered her spouse to move, and so began a new probationary period.

Both entry-level and senior-level jobs require a probationary period. At least one agency has claimed that the probationary firings applied primarily to clerical and administrative roles, which is simply not the case. Probationary employees exist at all levels of the federal government.

Two key points are worth emphasizing:

First, the exploitation of the relatively fewer protections for probationary employees subverts the actual purpose of this part of the system: ensuring a competent federal workforce.

The probation period exists for a reason, and it is not to give the president permission to hack away at the civil service without respecting the law. In our merits-based federal employment system, the point of the probation period is to allow supervisors to assess how well the employee is able to perform their role, so that only competent employees go on to receive “tenure” protections.

As the legislative history of the Civil Service Reform Act explains, “[t]he probationary or trial period . . . is an extension of the examining process to determine an employee’s ability to actually perform the duties of the position.” S. Rep. 96-969, at 45 (1978).

Second, probationary employees do have rights.

While it’s true that these employees often have fewer job protections than non-probationary employees, they have rights, including (but often not limited to) protection from prohibited personnel practices and constitutional violations.

As a federal court of appeals has emphasized, probationary employees are “just as entitled to be free of illegal or discriminatory treatment from their employers as are non-probationary employees.”

• Our new explainer on the rights of probationary employees walks through the different rights that different categories of probationary employees have, as well as how a probationary employee can figure out their status.

• This article explains more about how to read your SF-50. And though we’ve highlighted them before, this explainer from Suzanne Summerlin at Just Security and this blog post from the James & Hoffman law firm are both worth a re-read in light of recent developments.

Challenges to the firings

If you are a former probationary employee and are interested in challenging the legality of your termination, we are aware of a few ongoing efforts that you might consider learning more about:

• Democracy Forward has filed a complaint with the Office of Special Counsel to challenge the mass terminations of probationary employees. The complaint asks OSC to treat the complaint as a class covering all similarly situated individuals. At this time, Democracy Forward is compiling information about similarly situated employees to share with the Office of Special Counsel. You can learn more about this effort here.

• The federal employment law firm James & Hoffman is also considering legal action. You can find more information about that effort and how to participate here and here.

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Additional resources for employees

• Democracy Forward’s new tutorial on how to file an appeal of covered personnel actions with the MSPB. An appeal with the MSPB needs to be filed within 30 days of being fired or demoted. (Our explainer on the rights of probationary employees identifies which probationary employees have MSPB appeal rights; many non-probationary employees also have MSPB appeal rights).

• Civic Match: Connecting Federal Workers to State and Local Jobs (Civic Match Jobs Board; Civic Match Application; Guidance for Federal Jobseekers)

• Two sets of resources (1, 2) for federal workers and former federal workers in Maryland from the County Executive of Montgomery County and from the state.

• The American Foreign Service Association has put together this “virtual go bag,” a list of what employees can do to prepare for a sudden departure.

• The Partnership for Public Service’s webinar series on topics such as “how might my benefits be affected,” and “what are my whistleblower rights?” It also has written webinar recaps.

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Relevant reading:

• First Fall, by Maggie Smith.

• There’s a Term for What Trump and Musk are Doing: How Regime Change Happens in America, by Anne Applebaum.

• An Atlantic essay co-authored by one of us on why the Administration’s purges seem an awful lot like an unconstitutional effort to resurrect a government-wide political patronage system, something the First Amendment forbids.

• An analysis by Chris Geidner at LawDork of the February 11 “workforce optimization” executive order.

• The Use and Abuse of Administrative Leave, by Nick Bednar on Lawfare.

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