Federal watchdog requests pause in terminations of six probationary employees 

An independent investigative agency within the U.S. government has filed requests to pause the firings of six probationary workers at various agencies, arguing those terminations likely violated federal law.

In a Monday statement, the Office of Special Counsel said it filed the requests Friday with the U.S. Merit Systems Protection Board, a body within the executive branch that hears appeals from federal workers. Those requests sought 45-day stays in the “impermissible terminations” of the six workers as “there are reasonable grounds to believe that agencies engaged in prohibited personnel practices” under federal statute.

Specifically, OSC said terminating the employees appears to flout federal laws governing probationary firings and reductions in force.

The action, which was first reported by Government Executive, comes after agencies across the government have carried out mass firings of probationary workers and presents a potentially new avenue for recourse. According to the release from OSC, Special Counsel Hampton Dellinger believes that there are other probationary workers “similarly situated to the six workers for whom he currently is seeking relief” and he is “considering ways to seek relief for a broader group without the need for individual filings with OSC.”

According to a redacted copy of one of those requests by Dellinger, the agencies where the affected probationary employees worked were the Office of Personnel Management and the departments of Veterans Affairs, Education, Energy, Housing and Urban Development, and Agriculture.

While firings have often cited “performance” as a reason, workers and their unions have pushed back on those claims, saying agencies lack evidence. Unions have also challenged the personnel actions in federal court, though a federal judge last week denied a request for injunctive relief on standing grounds.  

In a statement from Dellinger included in the release, the special counsel pointed to the merit system principles established in the Civil Service Reform Act that guide federal agencies, saying those principles establish that all federal employees should be evaluated on individual performance, including probationary workers.

“Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force,” Dellinger said.

OSC’s mission, per its website, is to “safeguard the merit system by protecting federal employees and applicants from prohibited personnel practice. According to the example stay request, OSC said it can request any member of the Merit Systems Protection Board to order a 45-day stay if the special counsel determines there are reasonable grounds to believe that a personnel action was or will be taken “as a result of a prohibited personnel practice.” 

In its release, the OSC noted that it doesn’t typically comment on requests for stays before a decision is made by the MSPB and Dellinger didn’t comment publicly on the request before “its apparent disclosure by one of the agencies named as a respondent.” The special counsel, however, provided his statement as the requests were being discussed publicly.