On March 4, 2025, OPM issued a modified version of a guidance memorandum it originally issued on January 20, 2025, concerning reduction of federal headcount through firing of probationers. In the revised memorandum, OPM disclaimed that it could force other agencies to fire their probationary employees. This action appears to have been taken after a February 28, 2025 injunction which forced OPM to rescind any order to other agencies to fire their probationers en masse.
In the February 28, 2025, injunction, the court found that “No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies.” The court found that OPM had issued agencies directions on February 14, 2025, to commence en masse firing of probationers, including template language for use in the terminations that would claim the terminations were based on the fired probationers’ performance, without any indication of any actual review of the probationers’ performance by either OPM or the employing agencies. The court accordingly ordered that “OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees […] are unlawful, invalid, and must be stopped and rescinded.”
Rather than fully rescind the January 20, 2025 guidance memorandum, OPM issued a modified version instead. In the original memorandum, OPM asserted that “Probationary periods are an essential tool for agencies to assess employee performance and manage staffing levels.” (emphasis added). In the modified version, OPM replaced that sentence with “Probationary periods are an essential tool for agencies to assess employee performance and ensure that ‘a probationer’s conduct and performance have established that the individual will be an asset to the Government.’” OPM also added in the following clarification, “Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.” OPM also modified the e-mail addresses for contacts to OPM regarding the memorandum to add in OPM Chief of Staff Amanda Scales (including adding Ms. Scales’ e-mail address to the list of recipients for agencies to send lists of their probationary employees, even though the deadline for doing so passed on January 24, 2025).
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.