US judge issues temporary pause on federal probationary worker firings
A federal judge in California granted a request for a temporary restraining order against the Office of Personnel Management over its role in the firing of probationary workers in the U.S. government, the unions and advocates that brought the case said.
According to a statement by the plaintiffs, Judge William Alsup of the U.S. District Court for the Northern District of California granted the pause, determining the firings of federal probationary employees across the government weren’t legal because OPM didn’t have authority to order it.
The plaintiffs include AFL-CIO affiliates the American Federation of Government Employees and the American Federation of State, County and Municipal Employees, Main Street Alliance, the Coalition to Protect America’s National Parks, and several other organizations.
Alsup’s ruling was made during a Thursday hearing and a written order is forthcoming. The plaintiffs, however, shared news of the decision and cheered the win in statements Thursday night.
“We know this decision is just a first step, but it gives federal employees a respite,” AFSCME President Lee Saunders said in a written statement. “While they work to protect public health and safety, federal workers have faced constant harassment from unelected billionaires and anti-union extremists whose only goal is to give themselves massive tax breaks at the expense of working people.”
The district court order comes as federal probationary workers across the government have been fired for “performance,” which unions argued had illegally been at the direction of OPM.
It also follows a ruling by the Merit Systems Protection Board, a quasi-judicial body within the executive branch that hears worker appeals, to stay the terminations of six probationary employees earlier this week. That decision delivered a win to federal workers and potentially opened the door to other similar challenges.
An earlier federal court decision denied a similar request by federal worker unions. In that Feb. 20 ruling, Judge Christopher Cooper of the U.S. District Court for the District of Columbia said the court likely lacked the authority to hear the claims.
Prior to the court’s decision, OPM pushed back on claims the agency created a “mass termination program” and said agencies made their own decisions to terminate employees.
In a sworn declaration filed in the Northern District of California case Wednesday, OPM acting Director Charles Ezell said “OPM reminded agencies of the importance of the probationary period in evaluating applicants’ continued employment and directed agencies to identify all employees on probationary periods and promptly determine whether those employees should be retained at the agency.”
Ezell also said agencies don’t have to retain all “satisfactory” probationers, in response to a question from the court.
“An agency may determine, and OPM has determined, that the highest-performing probationers in mission-critical areas demonstrate the necessary fitness or qualifications for continued employment,” Ezell said.
The unions rebuked that declaration in their own filing Wednesday, however, arguing that Ezell contradicted documents OPM provided to the court and his statement is unsupported by testimony from agencies.
Specifically, they cited a Feb. 14 email provided by OPM to the court that told agencies to “separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17.”
They also pointed to statements from multiple agencies — including the Internal Revenue Service and the National Science Foundation — that told their workers that they made the firings at the direction of OPM.
The unions further argued that Ezell’s explanation of how agencies can fire probationary workers with satisfactory performance “has no basis in law.”
“Incredibly, OPM does not even try to cite any authority for this assertion beyond Acting OPM Director Ezell’s say-so,” the unions said in their filing.
