With so much uncertainty facing federal employees, many on probation want to know what their rights are—especially when it comes to actions against their employment like removing civil service protections, terminations, or reductions in force. Here are some of the most common questions about probationary employment in the federal government. (This article provides general information about federal employment rights and procedures. It is not intended as legal advice, and employees should consult with their union representative, or a qualified attorney, for guidance on specific situations.)
Frequently Asked Questions
1. What is a probationary period?
A probationary period is essentially a trial period for new federal employees. The length and conditions of probation vary based on the type of federal service:
- Competitive Service: Competitive service jobs are filled through a merit-based selection process and include most federal positions available to the public. Probationary periods for federal civil servants typically last one year; however, some agencies and positions may require longer periods. For instance, the Department of Defense previously mandated a two-year probationary period for certain positions, but this requirement was repealed effective Dec. 31, 2022, reverting to a one-year probationary period.
- Excepted Service: These jobs fall outside the competitive hiring process and are typically in agencies with special hiring authorities. Examples include intelligence agencies (e.g., CIA, NSA, FBI), positions in the Federal Aviation Administration (FAA), and some legal positions in the Department of Justice, among others. Hiring for excepted service positions does not follow the standard competitive hiring process but instead allows agencies greater flexibility in selecting candidates. Probationary periods for excepted service positions can last up to two years. Additionally, preference-eligible veterans may qualify for certain benefits, including a shorter probationary period or enhanced appeal rights compared to non-preference eligibles.
- Supervisory or Managerial Positions: A separate probationary period applies, even for employees with prior service in a non-supervisory role. These positions involve overseeing teams, setting strategic direction, and managing resources within an agency.
2. Can prior federal service affect my probationary period?
Yes, in some cases. If you have prior federal service, you may be able to count it toward completing your probationary period, depending on the nature of your past service and whether it was in the competitive or excepted service.
For example, prior service in the same agency and same line of work may allow you to “tack” previous service onto your current probationary period, potentially completing probation earlier. Tacking probationary time is not automatic and is highly dependent on agency discretion, position similarity, and break in service. Federal employees should confirm their status with HR before assuming prior service will apply.
3. Does military service count toward probationary periods?
Generally, active-duty military service does not count toward a civilian probationary period unless:
- You were employed in a federal civilian position before entering military service and are being restored to that position under USERRA (Uniformed Services Employment and Reemployment Rights Act) protections; or
- Your service was in a federal civilian capacity, such as a federal technician role in the National Guard or Reserve Technician Program where the position was tied to your military status.
Veterans may have additional hiring preferences, which can impact probationary status. Preference-eligible veterans in the excepted service may gain Merit Systems Protection Board (MSPB) appeal rights (explained below) sooner, sometimes after just one year of continuous service.
4. How can I determine my probationary status?
Your probationary status is typically documented in official federal employment records. To find out your probationary status:
- Review your SF-50 Notification of Personnel Action form, which indicates whether you are in a probationary period and the type of appointment you have. Save copies of your SF-50s.
- Contact your agency’s human resources office to confirm your probationary status and the applicable rules for your specific position. Document their responses.
5. Do probationary employees have civil service protections?
Not fully. Probationary employees do not have the same level of protection as tenured federal employees. This means they have limited rights to appeal removals or disciplinary actions.
However, some probationary employees may gain full due process and appeal rights before completing probation if they have prior federal service in the same or similar positions. This can occur under 5 U.S.C. §§ 7511-7517, which grants procedural rights to employees who meet specific service criteria:
- Competitive Service gains full appeal rights if they have one year of current continuous service in the same or similar positions, even if they are still in their probationary period.
- Excepted Service may obtain appeal rights after two years of current continuous service unless they are preference-eligible veterans, in which case they may gain appeal rights after one year.
- Rehired federal employees who previously completed a probationary period may not have to serve another full probationary period if their service is in the same agency and a similar position, allowing them to retain full procedural protections.
6. Can I be removed from federal service during my probationary period?
Yes, a federal agency can terminate a probationary employee with comparatively little process. Probationary employees are entitled to written notice stating the agency’s reasons for separation and the effective date of the removal from federal service. That said, if you were removed for impermissible purposes (see Q7 below), you may still have the ability to challenge the termination.
7. Do I have appeal rights if I am terminated?
The Merit Systems Protection Board (MSPB), which hears most federal employee termination appeals, does not typically have jurisdiction over appeals from probationary employees. However, under 5 C.F.R. § 315.806, probationary employees may appeal their removal to the MSPB if they allege it was based on partisan political reasons or marital status, or that certain procedural rights were violated.
Additionally, employees who believe they were removed based on political affiliation, marital status, or whistleblower retaliation, including probationary employees, may be able to challenge the decision through the Office of Special Counsel (OSC), pursuant to 5 U.S.C. § 2302(b)(1)(E), or the Equal Employment Opportunity Commission (EEOC).
8. Can probationary employees join a federal sector union?
Yes, probationary employees can join their federal sector union. Federal labor laws allow unions to represent employees regardless of their probationary status.
9. Can federal sector unions represent probationary employees in disputes?
Yes, federal sector unions can provide representation to probationary employees. However, their ability to formally challenge certain adverse actions may be limited compared to non-probationary employees. Generally, unions can:
- Provide advice and assistance on workplace issues.
- Represent employees in grievance procedures if covered under a collective bargaining agreement.
- Help probationary employees understand their rights and options when facing termination or disciplinary action.
While probationary employees have fewer formal appeal rights, union representation can still be beneficial in advocating for fair treatment and ensuring adherence to agency policies.
10. How does a reduction in force (RIF) affect probationary employees?
If an agency faces budget cuts or restructuring, probationary employees are often among the first affected since they have fewer protections than tenured employees. However, agencies must still follow reduction-in-force procedures, which include consideration of tenure, veteran preference, and performance.
For probationary employees, the consequences of an agency failing to follow RIF procedures depend on whether the violation involves statutory rights or collective bargaining agreement (CBA) protections:
- MSPB Appeal Rights: Probationary employees generally do not have the right to challenge a RIF through the MSPB unless:
- They meet the criteria under 5 U.S.C. § 7511 (e.g., they have completed one year of continuous service in the competitive service or qualify as a preference-eligible veteran).
- They claim the RIF decision was based on partisan political reasons, marital status, or other prohibited personnel practices (e.g., whistleblower retaliation).
- Union Grievances & Arbitration: If the CBA covers probationary employees, the union may be able to grieve RIF-related violations under the contract. However, some CBAs exclude probationary employees from full grievance rights, so their options may be limited.
- EEOC Complaints: If a probationary employee believes they were selected for a RIF based on discrimination (race, gender, disability, etc.), they can file a complaint with the Equal Employment Opportunity Commission (EEOC).
- OSC Complaints for Whistleblower Retaliation: If a probationary employee was targeted in a RIF for engaging in protected activity, such as reporting waste, fraud, or abuse, they can file a complaint with the Office of Special Counsel (OSC).
- Agency-Level Corrective Actions: Even probationary employees can seek relief if an agency fails to properly conduct a RIF (e.g., not following tenure group rankings or competitive area requirements). If an agency is found to have violated RIF rules, corrective actions (such as rescinding terminations) may be ordered.
11. How does the Deferred Resignation Offer (“Fork” Offer) impact federal probationary employees?
A new challenge to federal employees comes in the form of the deferred resignation offer, where an agency offers a probationary employee the option to resign at a later date instead of facing immediate termination. However, accepting such an offer may have significant consequences.
First, the government is not obligated to accept the resignation even if the employee agrees to it, leaving employees vulnerable to unexpected terminations or other retaliation. Additionally, even probationary employees who accept a deferred resignation may be waiving rights to challenge a termination, reduction in force, or other adverse actions, including claims of discrimination.
11. What should I do if I believe I was wrongfully terminated?
If you believe your termination was unlawful, you should:
- Review your termination notice to see if any reason given might be legally challengeable.
- Consult with your union (if applicable) or an attorney to understand your options.
- File a complaint with the appropriate agency, such as the OSC for whistleblower retaliation or the EEOC for discrimination claims.
Final Thoughts
Being a probationary employee can be stressful, but understanding your rights is the first step toward protecting yourself. While you don’t have all the protections of a full-time federal employee, certain laws still apply. If in doubt, seeking legal advice or union representation can help ensure you’re treated fairly.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.