OPM tells agencies it’s not directing probationary firings
The Office of Personnel Management said in a Tuesday revision to existing guidance that it’s not instructing other federal agencies to take personnel actions with respect to probationary employees.
“Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees,” the new language in the revised memo reads. “Agencies have ultimate decisionmaking authority over, and responsibility for, such personnel actions.”
The update follows a decision last week from a federal judge in San Francisco granting temporary, limited relief to pause and rescind those firings at several agencies. In making that ruling, U.S. District Judge William Alsup found that OPM’s original Jan. 20 memo on federal probationary workers and its other related efforts likely unlawfully directed the firing of those agency workers.
OPM “does not have any authority whatsoever under any statute in the history of the universe to hire and fire employees within another agency,” Alsup said during a hearing Feb. 27, per a transcript of that proceeding.
Alsup’s decision came just before the Department of Defense, which among the named agencies in the ruling, planned to cut thousands of its probationary workers, and after other named agencies, like the Department of Veterans Affairs, already terminated probationary staff. Those efforts have been a part of the Trump administration’s broader efforts to reduce the size of the federal workforce.
Since the decision, at least one agency has moved to reinstate its fired federal probationary workers. The National Science Foundation on Monday cited the federal courts and updated OPM guidance in its announcement that it planned to reinstate fired probationers — despite the science agency ultimately being excluded from the court’s order.
OPM’s original inauguration day memo on probationary workers asked agencies to provide a list of those workers to OPM by Jan. 24 and to determine if those employees should be retained. That memo was followed by a Feb. 14 email that OPM submitted to the court, which told agencies to “separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17.”
In addition to the new language in the Jan. 20 memo that OPM isn’t directing any personnel actions, the updated document removes references to copy Amanda Scales — who is reportedly OPM’s chief of staff and a former employee of Elon Musk’s xAI — on the emails to OPM.
The memo also added a quote that the probationary period is a tool to make sure “a probationer’s conduct and performance have established that the individual will be an asset to the Government.”
That excerpt is from a recommendation in a 2005 Merit Systems Protection Board report that stated OPM should create procedures so probationary employees don’t automatically become employees without agency action and that agencies “should be required to certify” the conduct and performance of a probationary employee. It’s not clear if that recommendation was implemented.
Notably, the MSPB — a quasi-judicial body in the executive branch — has emerged as an important venue for employees seeking relief from the probationary firings after the board stayed the terminations of six federal workers at different agencies.
While OPM acting Director Charles Ezell acknowledged that decision and said the agency was cooperating, the updated guidance doesn’t alter language from the original document that states “employees on probationary periods can be terminated during that period without triggering appeal rights to the” MSPB.
