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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Identifying Probationers and Their Rights*
    A probationary period takes place in the  competitive service.  The term “trial  period” is often used to describe a similar period in the excepted  service.  However, in both cases, the  purpose is to provide the agency with the opportunity to assess if the employee  will be an asset to the Government prior to the finalization of the  appointment.1For individuals in the competitive service, the probationary period is typically one year. 2  For the excepted service, the trial period  can vary, but is often either one or two years.3  In general, most probationers and individuals  in a trial period will have very limited procedural and appeal rights.**Limited  Rights of Probationers**The limited rights of probationers in the  competitive service are derived from regulations issued by the U.S. Office of  Personnel Management (OPM).  Because the  very nature of the excepted service is that it is excepted from the ordinary  rules of the competitive civil service, OPM tends to provide fewer regulations  that apply to the excepted service.   However, agencies may provide their own regulations and policies  governing such employment.4 
      When a probationer (in the competitive service)  is removed for “conditions arising before appointment,” the individual is  entitled to the following:      
    “[A]dvance written  notice stating the reasons, specifically and in detail, for the proposed action.”5
        “[R]easonable time  for filing a written answer to the notice of proposed adverse action and for  furnishing affidavits in support of his answer.  If the employee answers, the agency shall  consider the answer in reaching its decision.”6

  
     
        Notification “of  the agency’s decision at the earliest practicable date.  The agency shall deliver the decision to the  employee at or before the time the action will be made effective.  The notice shall be in writing, inform the  employee of the reasons for the action, inform the employee of his right of  appeal to the Merit Systems Protection Board (MSPB), and inform him of the time  limit within which the appeal must be submitted[.]”7These rights do not come directly from a  statute.  Rather, they can be traced back  to regulations promulgated by the Civil Service Commission (CSC) in 1968.8  OPM has chosen to keep these rights in its  own regulations.9In contrast, if a probationer is removed for  reasons of performance or conduct during the probationary period, the agency  “shall terminate his services by notifying him in writing as to why he is being  separated and the effective date of the action.”  There is no right to a notice of proposed  termination.10  These procedures can also be traced to the  CSC’s 1968 regulations.11  If the termination is for reasons that arose  both before and after the probationary appointment, then the process for  “conditions arising before [finalized] appointment” is used.12A probationer then has, again by regulation,  limited appeal rights to MSPB.13  If the probationer was terminated for reasons  arising before the probationary appointment, the probationer “may appeal on the  ground that his termination was not effected in accordance with the procedural  requirements” set forth in 5 C.F.R. § 315.805.14If the termination occurs for reasons arising  either before or after the probationary appointment, and the termination is not  required by statute, then the probationer can appeal the action if he or she  alleges that it “was based on partisan political reasons or marital status.”15  In such a case, the appellant must first make  an allegation of marital status discrimination supported by factual  assertions.  If the appellant makes such  a facially non-frivolous allegation, the probationer has a right to a hearing  at which he or she must support the allegation with a showing of facts which  would, if not controverted, require a finding that the agency action was  motivated by marital status discrimination.   If, and only if, the appellant makes the required showing in support of  that allegation, and the agency is unable to successfully controvert that  factual showing, MSPB will proceed to determine the merits of the case, *i.e.*, whether the agency has articulated  and supported a nondiscriminatory reason for its action, and whether the  probationary employee has shown that reason to be mere pretext.16**Probationers  and Trial Period Individuals with More Rights**
As explained in our 2007 report, *Navigating the Probationary Period After Van  Wersch and McCormick*, the U.S. Court of Appeals for the Federal Circuit has  held that Congress’s word choices when phrasing 5 U.S.C. § 7511 resulted in  certain probationary and trial period individuals having due process,  procedural, and appeal rights even though it was unlikely that Congress  intended this result.17
If an individual in the competitive service  “has completed 1 year of current continuous service under other than a  temporary appointment limited to 1 year or less[,]” then the person may have  full procedural and appeal rights even when in a probationary period.18  Similarly, if an individual in the excepted  service “has completed 2 years of current continuous service in the same or  similar positions in an Executive agency under other than a temporary  appointment limited to 2 years or less[,]” then the person may have full  procedural and appeal rights while in a trial period.19  Some individuals may have “preference” as a  result of military service, although not everyone with military service has  preference.20  Individuals eligible for preference will  obtain procedural and appeal rights after one year “of current continuous  service in the same or similar positions” in the excepted service.21
    Our 2005 report, *The Probationary Period:  A Critical Assessment Opportunity*,  recommended to Congress and OPM changes that they could implement to make the  probationary period more meaningful and effective as an assessment opportunity.22

1 For a discussion of  the purpose and use of the probationary and trial periods, *see* U.S. Merit Systems Protection Board, *The Probationary Period:  A  Critical Assessment Opportunity* (2005), at 34, available at www.mspb.gov/studies.
      2 5 C.F.R. § 315.802(a). (The initial draft of this report included language related to a Department of Defense probationary period authorized by the 2016 National Defense Authorization Act (NDAA) that was later rescinded by section 1106 of the 2022 NDAA. *See*https://www.congress.gov/bill/117th-congress/senate-bill/1605/text.)
      3*See, e.g., Lopez v. Department of the Navy*, 108 M.S.P.R. 384, ¶ 2  (2008) (1-year trial period); *Kursar v.  Department of Transportation*, 102 M.S.P.R. 306, ¶ 2 (2006) (1-year trial  period); 5 C.F.R. § 362.303(f) (“The duration of the Recent Graduates  appointment in the excepted service is a trial period.”)
      4*See National Treasury Employees Union v. Horner*, 854 F.2d 490, 492  (D.C. Cir. 1988) (explaining that “a variety of more flexible and informal  procedures – some established by OPM and others developed by individual  agencies – are used to recruit and select new employees into the excepted  service”).
      5 5 C.F.R. § 315.805(a).
      
      6 5 C.F.R. § 315.805(b).
      7 5 C.F.R. § 315.805(c).

  8 33 Fed. Reg. 172 at  12402, 12422 (Sep. 4, 1968).
  9 5 C.F.R. § 315.805.
  10 5 C.F.R. § 315.804.
  11 33 Fed. Reg. 172 at  12402, 12422 (Sep. 4, 1968).
  12 5 C.F.R. § 315.805.
  13 5 C.F.R. §  315.806.  *See* *Stokes v. Federal  Aviation Administration*, 761 F.2d 682, 684-85 (Fed. Cir. 1985) (explaining  that while a probationer has no statutory right of appeal, by regulation MSPB  will consider probationer appeals when the probationer alleges the action was  the result of partisan politics or marital status discrimination).
  14 5 C.F.R. § 315.806(c).
  15 5 C.F.R. § 315.806(b).
  16*Burton v. Department of the Air Force*, 118 M.S.P.R. 210, ¶ 8 (2012)  (summarizing the court’s holding in *Stokes  v. Federal Aviation Administration*, 761 F.2d 682, 686-87 (Fed. Cir. 1985)).
  17*Van Wersch v. Department of Health and Human Services*, 197 F.3d  1144, 1151 (Fed. Cir. 1999) (holding that while the legislative history  supported the Government’s argument regarding what Congress intended the law  should achieve, the court was instead required to follow the “language that  emerged when Congress actually took pen to paper”).  *See* U.S. Merit Systems Protection Board, *Navigating  the Probationary Period After Van Wersch and McCormick* (2007), at 12-13,  available at www.mspb.gov/studies.
  18 5 U.S.C. §  7511(a)(1)(A).
  19 5 U.S.C. §  7511(a)(1)(C).
  20 For more on the  complexities of preference based on military service, including preference  derived from the service of family members, *see* U.S. Merit Systems Protection Board, *Veteran  Hiring in the Civil Service:  Practices  and Perceptions* (2014), at 7-8, available at www.mspb.gov/studies.  *See also*, U.S. Office of Personnel  Management, *VetGuide*, available at https://www.opm.gov/policy-data-oversight/veterans-employment-initiative/vet-guide/.
  21 5 U.S.C. §  7511(a)(1)(B).
  22 U.S. Merit Systems  Protection Board, *The Probationary Period:  A Critical Assessment Opportunity* (2005),  at 34, available at www.mspb.gov/studies.


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