In light of the mass terminations of executive branch probationary employees, a review of when a probationary period actually ends is timely.
As a definitional matter, “probationary periods” strictly apply to competitive service employees; excepted service employees instead are in a “trial period” which often (but does not necessarily) follow the same rules as those of the competitive service. See, e.g., El v. Dept. of Commerce, 123 M.S.P.R. 76 (2015) at fn.5. The duration of a trial period for an excepted service employee can vary, depending on the nature of the appointment, and appeal rights for excepted service employees can also vary depending on whether or not they are a ‘preference eligible’ military veteran (a concept previously discussed in this blog).
For competitive service employees, the probationary period end date is calculated under an Office of Personnel Management regulation, 5 C.F.R. § 315.802. For an ordinary one year probationary period, the end date is based on a calendar year from the anniversary date of the effective date of the appointment, subject to two major adjustments. One, if a probationary employee has a total of more than 22 days of unpaid leave status (other than due to military duty or compensable workplace injury) during the probationary period, the probationary period is extended by the duration of the unpaid leave. Second, for a probationary termination to be valid, it must be effective prior to the end of the last scheduled shift on the last scheduled workday prior to the completion of the probationary period. See, e.g., Jones v. Social Security Administration, MSPB Docket No. PH-315H-21-0050-I-1 (January 30, 2025) (citing Honea v. Department of Homeland Security, 118 M.S.P.R. 282, ¶ 6 (2012), aff’d, 524 F. App’x 623 (Fed. Cir. 2013); Burke v. Department of Justice, 53 M.S.P.R. 372, 375 (1992)). An employee who is terminated after the completion of their probationary period using the probationary termination procedures (and who does not receive full due process of advance notice of the charges and an opportunity to respond) has potentially strong grounds to challenge the removal at the Merit Systems Protection Board on due process grounds. See id.
For those employees in a probationary period after having served in another federal civil service position, there is a recognized legal argument that permits the prior service to be “tacked” onto the present probationary period in some circumstances. The prior service must be civil service (not contractor service), must be at the same agency, within the same line of work, and with no more than one break in service (which cannot exceed 30 calendar days). See 5 C.F.R. § 315.802(b). Assessment of a possible tacking argument requires careful examination of facts such as the dates of service and respective duty assortments of the positions, as well as any possible agreement to serve a new probationary period that is associated with the transition to the new position.
If you are a current or former probationary employee of the federal government, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.