For most positions in the Federal civil service—those in what is known 

as the “competitive service”—the law provides that the first year of 

employment is a probationary period. An individual’s appointment is 

not considered final until the completion of probation. An agency may 

terminate a probationer’s appointment with no advance notice and only 

a limited right of appeal when it is not satisfied with the probationer’s 

performance or conduct. For other positions—those in what is known 

as the “excepted service”—the law does not require a probationary 

period per se, but it nonetheless provides that an agency may terminate 

an employee’s appointment during the first two years with no advance 

notice and no right of appeal. 

The purpose of the probationary period is to provide an assessment 

opportunity in which the agency can judge the individual in the job 

before finalizing the appointment. In our 2005 report, The Probationary 

Period: A Critical Assessment Opportunity, we discussed a number of 

findings and recommendations regarding the probationary period. One 

of our primary findings was that agencies were not using the 

probationary period as intended. 

For the survey used in the 2005 report, we asked supervisors of 

probationers two related questions: (1) “Based on your experience with 

this employee’s performance and conduct thus far, if you could do it 

over again, would you select this employee for the position?” and (2) 

“Based upon your experience with this employee’s performance and 

conduct thus far, do you expect to retain this employee in his/her 

position beyond the probationary period?” As shown in the table 

below, many supervisors who were unsure if they would select the 

person again, or who were sure they would not select the person again, 

nevertheless intended to permit the appointment to be finalized. 

Continued on page 2 

The New Employee Probationary Period 

INSIDE: 

The New Employee 

Probationary Period 1 

The New Supervisor 

Probationary Period 2 

The Standard of Proof 3 

The Length of the 

Removal Process 

4 

The Period to Reply to a 

Proposed Removal 5 

Perceptions Regarding 

the Scope of Employee 6 

Relevant Materials for 

Reference 8

A Note About this 

Publication 7

Selected Pertinent 

Statutes and 

Regulations 

7

A Publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board 

ADVERSE ACTIONS: THE RULES AND THE REALITY 

AUGUST 2015 

Do you expect to retain beyond 

the probationary period?   

Yes No Not Sure   

Supervisors who would not select again 52% 31% 17%   

Supervisors who were not sure if they would select again 82% 0% 18%   
The New Employee Probationary Period Continued 

The probationary period serves an important role in the balance between 

empowering management to ensure that only good workers become tenured 

employees and ensuring that the civil service is protected from the 

implementation of arbitrary or improper adverse actions. However, the data 

indicates that during the probationary period, when individuals can be removed 

easily, supervisors are reluctant to separate those who are not a good fit for the 

job. In other words, how the rules are used determines the outcome, and in the 

case of the probationary period for new employees, those rules are often unused 

by management officials. 

ADVERSE ACTIONS: THE RULES AND THE REALITY Page 2 

The effectiveness 

of the tools 

provided for 

managing the 

workforce 

depends upon how 

agencies opt to 

use those tools. 

The New Supervisor Probationary Period 

As with the probationary period for new employees, a current employee who is 

assigned to a supervisory position must complete a supervisory probationary 

period. The law provides that if a current non-supervisory employee becomes a 

supervisor and does not perform successfully in that role, the individual should 

be moved to a non-supervisory job (such as the one in which he or she was 

successful prior to becoming a supervisor). However, as with the probationary 

period for new employees, it appears that the new supervisor probationary 

period is not always being used as the assessment opportunity that it was meant 

to be. As discussed in our report, A Call to Action: Improving First-Level Supervision 

of Federal Employees, and shown in the figure below, a little more than a third of 

the surveyed supervisors reported that the probationary period was used to 

assess them when they first became Federal supervisors. Here too, the 

effectiveness of the tools provided for managing the workforce depends upon 

how agencies opt to use those tools. 

Was your probationary 

performance used to 

decide if you should 

continue in a supervisory 

role? 
The Standard of Proof 

Page 3 

The overwhelming 

majority of 

respondents 

indicated that they 

used the standard 

of “beyond a 

reasonable 

doubt.” 

ADVERSE ACTIONS: THE RULES AND THE REALITY 

As discussed in our report, Addressing Poor Performers and the Law, the law 

provides that when an adverse action taken under chapter 75 of title 5 is 

appealed to the U.S. Merit Systems Protection Board (MSPB), the agency must 

support the reason(s) for its action by preponderant evidence. In plain English, 

“preponderant evidence” means that it is more likely than not that the 

assertions are true. 

As a part of this study, we surveyed proposing and deciding officials for 

removal actions that were implemented under chapter 75 or equivalent 

procedures. These actions included conduct-based as well as performancebased issues, but the rules that the agencies chose to effectuate the removals set the standard 

of proof as preponderant evidence. Our survey asked these officials what standard of 

proof they used when deciding to propose or implement these removal actions. 

As shown in the table below, few officials reported that they used the standard 

contained in the law. The overwhelming majority of respondents indicated that 

they used the standard of “beyond a reasonable doubt.” Only five percent of 

deciding officials and three percent of proposing officials used the correct, lessdemanding standard set in law. 

As with the probationary periods discussed earlier, the standards set by 

Congress or the Office of Personnel Management can greatly differ from the 

practices of agency officials who make the day-to-day decisions about Federal 

employees; it is the decisions reached by these officials that will determine 

whether an individual is retained or separated. 

Standard of Proof Used Proposed 

Removal

Decided 

Removal

Beyond a reasonable doubt 90% 84% 

Highly likely 7% 10% 

More likely than not 3% 5% 

Reasonable person could conclude 1% 1% 
The Length of the Removal Process 

By statute, the removal of a non-probationary employee in the competitive or 

excepted services cannot take place sooner than 30 days from the point at which 

it is proposed. However, if there is reasonable cause to believe that the 

employee has committed a crime for which a sentence of imprisonment may be 

imposed, a removal can be effectuated in as little as seven days. But, an agency 

official must first become aware of the poor performance, misconduct, or other 

issue and determine if it is appropriate to propose a removal. 

The law does not address the period of time that an agency uses between the 

point at which it becomes aware of an issue and the point at which the removal 

is proposed. In our survey for the report, Addressing Poor Performers and the Law, 

we asked proposing officials for removal actions (based on conduct, 

performance, or both) taken under chapter 75 of title 5, “From the time you 

first became aware of the possibility of the offense, how many weeks was it 

before the personnel action took effect?” As shown in the figure below, for 

more than two-thirds of removal actions, the agency took over six weeks to 

effectuate the action in question. Almost one-fifth of the removal actions took 

over 6 months to effectuate. (Only 23 percent of removal actions were 

effectuated in five weeks—35 days—or less.) Thus, how much time passes 

before an agency removes an employee with identified issues depends more on 

the decisions made by agency officials than it does on the 30-day proposal 

period set forth in statute. 

ADVERSE ACTIONS: THE RULES AND THE REALITY Page 4 

The proposal 

period set forth in 

statute is not the 

only factor that 

influences how 

much time passes 

before an agency 

removes an 

employee with 

identified issues. 
The Period to Reply to a Proposed Removal 

Page 5 

Officials may find 

irrelevant the 

minimum waiting 

period set in 

statute when they 

determine that the 

case requires 

more time. 

ADVERSE ACTIONS: THE RULES AND THE REALITY 

We recently discussed the rules for removing an employee in our report, What is 

Due Process In Federal Civil Service Employment? As that report explains, the U.S. 

Supreme Court has held that before removing a tenured employee in a public 

merit-based system, the individual must be told of the proposed action and 

given a meaningful opportunity to respond to the charges. The current statute 

provides that opportunity by requiring that the agency provide a written notice 

of the reasons for the proposed action and give the individual “reasonable time, 

but not less than 7 days, to answer orally and in writing and to furnish affidavits 

and other documentary evidence in support of the answer[.]” 

The statute also states that, absent a crime, the agency must wait a minimum of 

30 days after proposing the action before implementing it. This means that a 

proposing official can offer an employee an opportunity to reply that is two or 

three times as long as the mandatory 7 days, or the deciding official can extend 

the offered reply period, without automatically causing the agency to delay the 

effective date of the action. 

In the survey for the report, Addressing Poor Performers and the Law, we asked 

deciding officials for removal actions (based on performance, conduct, or both) 

whether they had provided an extension to the period to reply, and how long 

the extension lasted. Half of the removal action deciding officials reported that 

they provided an extension. As shown in the figure below, nearly two-thirds of 

those extensions were for an additional 15 days or more. These extensions of 

more than 2 additional weeks, when added to the initial period to reply, most 

likely delayed the agency’s ability to effectuate the action immediately upon the 

expiration of the 30-day waiting period. This is particularly true for those 

actions where the extension alone exceeded 30 days. 

The period to reply must be 

meaningful in order for the 

action to be valid, and what 

is meaningful will likely 

vary based on the charges 

and evidence in a particular 

case. This data 

demonstrates the extent to 

which officials may find 

irrelevant the minimum 

waiting period set in statute 

when they determine that 

the case requires more time. 
Perceptions Regarding the Scope of Employee Rights 

It has often been said that it is too hard to remove Federal employees who have 

conduct or performance issues. In the survey for the report, Addressing Poor 

Performers and the Law, we asked proposing and deciding officials for removal 

actions (based on performance, conduct, or both) whether they agreed with the 

statement that “Federal employees have too many rights.” This is a unique 

population to answer that question, because these are officials who have actual 

experience using the system to remove Federal employees who have appeal 

rights under chapter 75 of title 5. As shown in the figure below, proposing and 

deciding officials generally shared similar views. Overall, only 10 percent of 

officials strongly felt that employees had too many rights while 15 percent 

strongly disagreed with the statement. The most common view, held by 42 

percent of respondents, was neutral, which appears to indicate that proposing 

and deciding officials felt that Federal employees had an appropriate level of 

rights. 

There were very slight differences between the two groups, particularly among 

those who felt most strongly that employees have too many rights. For 

deciding officials, only 7.6 percent strongly agreed that employees had too many 

rights, while 12.1 percent of proposing officials strongly agreed with that 

statement. It is interesting that the officials most responsible for ensuring that 

the agency provides a meaningful opportunity to respond to the charges—and 

who would be required to defend the action to a third party—tended not to 

strongly object to the level of rights given to the individuals that they removed. 

ADVERSE ACTIONS: THE RULES AND THE Page 6 

Overall, only 10 

percent of 

officials strongly 

felt that 

employees had too 

many rights while 

15 percent 

strongly 

disagreed with the 

statement. The 

most common view, 

held by 42 percent 

of respondents, 

was neutral. 
A Note About This Publication 

Page 7 ADVERSE ACTIONS: THE RULES AND THE REALITY 

Copies of MSPB reports and newsletters are available to the public at no cost at www.mspb.gov/studies. The 

methodologies used for the surveys discussed in this publication are explained in the individual reports. 

Inquires about MSPB and its work should be directed to MSPB’s Clerk of the Board at (202) 653-7200 or 

MSPB@mspb.gov. 

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency in the executive branch that serves as 

the guardian of Federal merit systems. MSPB carries out its statutory responsibilities and authorities primarily by 

adjudicating individual employee appeals and by conducting merit systems studies. MSPB’s vision is a highly-qualified, 

diverse Federal workforce that is fairly and effectively managed, providing excellent service to the American people. 

5 U.S.C. § 3321 (Competitive Service Probationary Period) 

5 C.F.R. §§ 315.801-806 (Probation on Initial Appointment to Competitive Service) 

5 C.F.R. §§ 315.901-909 (Probation on Initial Appointment to Supervisory or Managerial Position) 

5 U.S.C. § 4303 (Actions Based on Unacceptable Performance) 

5 C.F.R. §§ 432.104-106 (Addressing Unacceptable Performance) 

5 U.S.C. §§ 7501–7504 (Suspension for 14 Days or Less) 

5 U.S.C. §§ 7511–7514 (Removal and Suspension for More Than 14 Days) 

5 C.F.R. §§ 752.201-406 (Adverse Actions) 

5 U.S.C. §§ 7701-7703 (Appeals) 

5 C.F.R. §§ 1201.1-205 (MSPB Practices and Procedures) 

Selected Pertinent Statutes and Regulations 

The U.S. Merit Systems Protection Board has the authority to study the civil 

service and report upon its findings (5 U.S.C. § 1204(a)(3)). MSPB typically 

releases information gathered through its studies function by issuing a report to 

Congress and the President, with copies made available to the public. Reports 

usually attempt to present a relatively complete picture of a topic or sub-topic. 

MSPB’s Office of Policy and Evaluation may issue information on a smaller 

scale through articles in its newsletter, Issues of Merit. This publication differs 

from Issues of Merit insofar as it is an effort to supply information on interrelated 

topics surrounding a single theme, but it does not cover a topic in the same 

depth that would be found in an MSPB report. 
Relevant Materials for Reference 

MSPB has been issuing reports related to the health of the civil service since 1981. We have also published 

articles in our Issues of Merit newsletter since 1996. Our website’s studies page, www.mspb.gov/studies, 

contains copies of these publications. Below is a list of some available materials that readers may find relevant 

to the subjects covered in this publication. The list below is not all-encompassing and we encourage people 

and organizations with an interest in a merit-based civil service to search the MSPB studies website for items 

that correspond to their interests. 

Reports: 

What is Due Process in Federal Civil Service Employment (2015). 

Clean Record Settlement Agreements and the Law (2013). 

A Call to Action: Improving First-Level Supervision of Federal Employees (2010). 

Addressing Poor Performers and the Law (2009). 

Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee Misconduct (2008). 

Navigating the Probationary Period After Van Wersch and McCormick (2007). 

The Probationary Period: A Critical Assessment Opportunity (2005). 

Federal Supervisors and Poor Performers (1999). 

Removing Poor Performers in the Federal Service (1995). 

Issues of Merit Articles: 

Probationary Periods: A Missed Opportunity to Address Poor Performance, Spring 2015, p. 5. 

Alternative Discipline: What You Need to Know, Feb. 2009, p. 3. 

What Agencies Should Know in a Post-Van Wersch and McCormick World, Jul. 2006, p. 6. 

Due Process: What You Need to Know, May 2006, p. 5. 

The Trial Period: A Missing Link, Jan. 2006, p. 1. 

Replace Warm Bodies With Working Bodies, Apr. 2005, p. 5. 

Department of Health and Human Services: Administering the Probationary Period, Jan. 2005, p. 3. 

Using the Probationary Period to Weed Out Selection Errors, Jun. 2004, p. 5. 

Lessons Learned on Removing Poor Performers, Summer 2004, p. 6. 

Poor Performers: Does the Solution Address the Problem, Jul. 2003, p. 1. 

Who Says You Can’t Fire a Poor Performer, Feb. 2003, p. 4.