About the Merit Systems Protection Board

The Rights of Federal Probationary Employees

No matter how thoroughly an employer interviews a potential employee and checks his or her references, there are bound to be surprises when a new employee begins working for an employer. Some of the surprises may be good. Perhaps the employee learns quickly and is willing to stay late, for example. However, sometimes, those surprises are bad, such as when the employee fails to perform his or her job responsibilities or work collaboratively with coworkers. These are things that any employer, including the US government, would not know until an employee started the job. Therefore, the US government requires employees to complete a probationary period to make sure that the hiring personnel’s decision was correct and that the employee is a good fit for the job.

The US Probationary Employment Period

Most US government employees are put on probationary employment for a one year period from the date of hire. Studies indicate that the most effective way for the government to use the probationary employment system is to thoroughly assess an employee during that time. By the end of the probationary period, agency personnel should be able to state with certainty whether an employee has the skills to effectively complete the job.

Rights of US Probationary Employees

During the probationary period, the employee is still technically considered an applicant for employment (albeit one who is paid for work completed). As such, a probationary employee does not have the same protections against adverse workplace actions as other employees who are protected by the Federal merit system. They may be fired for poor job performance, or other reasons, and they do not have the same rights of appeal, such as to the Merit Systems Protection Board (MSPB) that other federal employees have. The MSPB only has jurisdiction over employees and, by definition, workers who are still within the probationary period of employment are not yet federal employees.

However, US government probationary employees do have some legal protection against job loss. Basically, they have the same rights, and the same rights to appeal, as job candidates. Federal law allows probationary employees to appeal to the MSPB if they are fired for partisan political reasons or because of their marital status. Probationary employees may also appeal to the MSPB for limited procedural reasons. For example, if the agency failed to provide the required procedural notifications including notice, a time to answer the notice, and a written conclusion regarding the decision not to permanently hire a probationary employee.

Probationary employees also have the right to appeal to the Equal Employment Opportunity Commission (EEOC) if they believe that they have been discriminated against based on their race, color, religion, sex, national origin, age, or disability. Federal law provides this protection to job applicants, probationary employees and regular employees equally.

If you are a probationary employee with the United States government then you may have limited rights to appeal a termination or adverse employment action that occurs during your probationary period. It is important to contact an experienced employment lawyer as soon as possible. Your lawyer advise you as to whether you have the right to appeal to the MSPB or another federal agency and can help you resolve the matter as quickly as possible.