Expert calls executive order on federal probationary workers ‘unlawful’

An executive order signed by President Donald Trump on 24 April requires federal agencies to actively certify that a probationary worker would “benefit the federal service” prior to their conversion to tenured status. A federal employment expert argues that the order is unlawful and intends to strip current federal employees of their rights, ultimately making it easier to fire workers who don’t align with the administration’s objectives.

Prior to the executive order, probationary workers at federal agencies such as the US Food and Drug Administration (FDA) were automatically tenured at the end of their probationary period, a practice the Trump Administration says failed to weed out unqualified candidates.

“The Government Accountability Office has documented, however, that agencies have not been using probationary and trial periods as effectively as they could to remove appointees whose continued employment is not in the public interest,” said the executive order. “As a result of this failure to remove poor performers, agencies have often retained and given tenure to underperforming employees who should have been screened out during their probationary period.

Joanna Friedman, a partner at the Federal Practice Group, told Focus that she believes the executive order is unlawful in most cases since the administration seems to be legislating through the order by making substantive changes to existing regulations under the Civil Service Reform Act of 1978 (CSRA). Typically, she said an agency has the right to fire workers within the probationary period unless their firing is considered discriminatory, whistleblower retaliation, or retaliation for union activity.

“You cannot lawfully change these regulations without congressional approval,” she said. “I want to be very clear that I believe this order is unlawful.”

Friedman said that one way to challenge the constitutionality of the executive order would be to file a lawsuit in federal court. However, she noted that it would require standing, which has been an issue with some of the lawsuits filed on behalf of federal employees, where the courts have determined the groups don't have standing.

"It really would have to be a group of probationary employees or maybe a union that can identify at least a plaintiff or two that the order would impact to be able to have standing in court," she said.

Friedman said a probationary employee who has been automatically terminated under the executive order could also file an appeal with the Merit Systems Protection Board (MSPB) and argue that the termination violates the CSRA.

Human resources staff at federal agencies have also reportedly been affected by the administration’s reduction-in-force (RIF) initiatives. The lack of HR personnel could significantly impact the agencies’ ability to review and certify probationary workers for tenured positions promptly, Friedman said.

Friedman said that she believes the administration’s strategy seems to be to fire federal workers en masse through the RIFs, and after the 30-day break in service has expired, the employees can reapply for their old positions as probationary workers without the employment protections they used to have.

“I believe what the administration is trying to do is that they're trying to circumvent the Civil Service Reform Act that have certain protections for tenured employees before they can be fired, whereas they have to be issued a proposed removal, a decision can be made and then that can be appealed to the MSPB for many employees,” she said. “They're trying to circumvent that process by first firing them through RIFs, posting positions after the 30-day break in service, and then having an order like this apply to them so they can be fired much easier.”

Similarly, Steven Grossman, an FDA regulatory consultant and author of the FDA Matters blog, told Focus that the order makes it easier for the Trump administration to fire federal employees.

“Only an experienced government HR person can tell you whether there is a problem for which this is a solution,” he said. “Maybe it is. However, given the timing and tone, you have to wonder whether this is yet another effort to convert more federal employees to ‘at will’ status without job protections.”

Executive order

Expert calls executive order on federal probationary workers ‘unlawful’

Related topics

Recommended content

Welcome to the new RAPS Digital Experience