On April 24, 2025, the Administration issued a new executive order, implementing significant changes to the probationary period and trial period rules for federal employees.
Probationary periods typically apply to competitive service employees; excepted service employees in some instances are covered by the analogous concept of a trial period. The executive order focuses on the regular probationary period, not the separate and independent concept of a supervisory probationary period (previously discussed in this blog). While the requirement for a probationary period for competitive service employees is statutory, the relevant statute (5 U.S.C. § 3321) contains few procedural or substantive standards; instead, probationary periods and trial periods are chiefly governed by regulations and agency policies.
The executive order purported to implement changes in the Code of Federal Regulations provisions concerning probationary employees, with alleged immediate effect and without first going through any notice-and-comment rulemaking process, specifically by (a) revoking Civil Service Rule II, Section 2.4 (5 C.F.R. § 2.4), which authorized the Office of Personnel Management (OPM) to issue rules concerning probationary periods, (b) issuing a new Civil Service Rule XI (5 C.F.R. §§ 11.1-11.6), and (c) declaring OPM’s preexisting probationary period regulations (5 C.F.R. Part 315 Subpart H) to be “inoperative and without effect” and directing OPM to initiate rulemaking proceedings to rescind those regulations. The ultimate legal validity of the declaration of Part 315 Subpart H as “inoperative and without effect” remains to be seen, as similar declarations by this Administration are currently in litigation (as previously discussed in this blog).
Substantively, the executive order makes a number of immediate changes to the structure of probationary periods, including the following:
- Trial periods for excepted service positions were formally added to the Code of Federal Regulations, to last one year for a preference eligible veteran and two years for other excepted service appointees. This change tracks the preexisting standard for MSPB appeal rights accrual for adverse actions under 5 U.S.C. §§ 7511(a)(1)(B, C).
- “Tacking” rules formerly found in 5 C.F.R. § 315.802 were mostly retained. However, a carveout that permitted probationers to leave federal service to volunteer with the Corporation for National and Community Service (i.e. AmeriCorps) or the Peace Corps and not lose credit for time in probationary service when they reentered federal service after volunteering was stricken by the executive order.
- Completion of probationary and trial period is no longer automatic when the employee reaches their one-year or two-year anniversary date for their appointment, as applicable. Instead, unless the employing agency specifically issues a written certification within 30 calendar days of the relevant anniversary date endorsing the employee for continued federal employment, the probationer is automatically fired on the day before their anniversary date. This action eliminates a common ground for appealing probationer terminations, as analyzed previously in this blog.
- Prior procedures that required due process before termination of probationers for pre-appointment reasons have been eliminated.
- The grounds for terminating a probationer for post-appointment reasons have been expanded. Previously, probationers had to be terminated for post-appointment grounds based on their performance or conduct. OPM’s attempts to direct mass firing of probationers to avoid RIF requirements had resulted in litigation. Under the new executive order, agencies are now permitted to consider other factors such as the agency’s needs and interests in deciding whether or not to retain probationers, under a seemingly broad “public interest” standard.
- The burden of proof for establishing eligibility to remain in the federal service was placed on the employee.
- Agencies are still required to provide written notice before terminating the employee, but that notice only has to note the effective date—the requirement for stating the reason the termination (as previously required under 5 C.F.R. §§ 315.804(a), 315.805(c)) was eliminated.
- The present regulation permitting MSPB appeals of probationer terminations in certain cases was eliminated. OPM was authorized to enact a new appeal regulation, but the executive order provided no timeline for doing so, and no details on the appeal mechanism (including whether the appeal would go to the MSPB, OPM, the employing agency, or somewhere else). The executive order leaves intact any other appeal avenues “required by law,” indicating that other legal appeal grounds (for example, EEO, USERRA or whistleblower reprisal complaints) remain available to probationers who for example contend that their termination was based on unlawful discriminatory or retaliatory motives.
The executive order does provide that an agency that erroneously fails to issue a certification for a probationer who it wants to retain is permitted to petition the OPM Director to reinstate the employee within 30 days of the date of termination. The executive order is silent as to whether any such reinstatement would be retroactive to the date of termination and makes the decision to reinstate purely discretionary on the part of the OPM Director.
The executive order requires agencies to set up mechanisms for those employees whose probationary or trial periods ended 90 days or more from the date of the executive order. For those probationers, agencies are supposed to “where practicable” schedule meetings 60 or more days from the end date of the probationary or trial period, to discuss how the employee rates with regard to the standards for retention, and the agency is supposed to issue a retention decision 30 days before the end of the probationary or trial period. This procedure takes effect July 22, 2025.
The regulation does not purport to be retroactive in effect, for those employees who have already completed their probationary or trial periods prior at the time the executive order was issued. The executive order also does not mention the present OPM regulation that permits probationers to appeal RIFs (5 C.F.R. § 351.901), and so that regulation remains in place.
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.