In light of the mass terminations of executive branch probationary employees (including potentially termination of possible non-probationary employees who were serving in a supervisory probationary period), a discussion of a supervisory probationary period is timely.
A supervisory probationary period is an independent, separate and distinct legal concept from an ordinary competitive service probationary period (previously discussed in this blog), falling under a separate subsection of its underlying statute, 5 U.S.C. § 3321. Under the competitive service regulations, an employee appointed for the first time to a supervisory or managerial role serves a ‘supervisory probationary period.’ These rules do not apply to the Senior Executive Service, and may or may not apply to a time-limited appointment at the agency’s discretion. Also, the supervisory probationary period is a competitive service concept, and it is legal error to take a supervisory probationary period action against an excepted service employee. See, e.g., Leonard v. Dept. of Veterans Affairs, MSPB Docket No. NY-0752-21-0104-I-1 (October 15, 2024); Patterson v. Dept. of Veterans Affairs, MSPB Docket No. AT-0752-20-0620-I-1 (Feb. 19, 2021) (Thompson, A.J.).
Crucially, an employee who is found to have failed in their supervisory probationary period but who is not otherwise in a normal probationary period is not eligible to be fired using a summary probationary termination; instead, under 5 C.F.R. § 315.907, they are supposed to be demoted back to a position at comparable to the one they held immediately prior to their promotion to managerial or supervisory status. See, e.g., Walker v. Dept. of the Army, 119 M.S.P.R. 391 (2013). The right of an employee in a supervisory probationary period to return back to the former position is referred to by the courts as a ‘statutory guarantee.’ See Lisiecki v. Merit Systems Protection Bd., 769 F. 2d 1558, 1565 (1985).
The relevant regulations specify rules for determining whether prior managerial or supervisory service suffices to meet a supervisory probationary period. For example, prior supervisory service in the excepted service does not count toward meeting a competitive service supervisory probationary period. See Mouton-Miller v. Merit Systems Protection Board, 985 F.3d 864 (Fed.Cir. 2021).
If you are a current or former supervisory probationary employee of the federal government, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.