## 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. 

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 1 *See* 2