If you have recently been terminated during your probationary period as a federal employee, you may feel as though you have no recourse. However, depending on your specific circumstances, you may have appeal rights that allow you to challenge your termination.

Federal law recognizes that certain probationary employees, despite their probationary status, may be eligible to seek review of their termination before the Merit Systems Protection Board.          The determining factors will be:

• the type of service (competitive vs. excepted)
• whether you are serving in a probationary period under your initial appointment to the federal government, and
•  your current position and years of service in that position.

Who Can Appeal Their Termination?

Under 5 U.S.C. § 7511(a)(1) and 5 U.S.C. § 7513, certain probationary period employees may still be considered employees entitled to appeal their termination to the MSPB.

Below is an overview of the key factors that could make you eligible to appeal:

1. Employees in the Competitive Service:

• • If you are a competitive service employee, you may still have appeal rights even if you were terminated during your probationary period, provided you meet the following criteria:
    • You are not serving under an initial appointment, meaning you have previously completed a probationary or trial period for a permanent position with the federal government; and
    • You have at least 1 year of current continuous service in a federal position, as of the date of your termination.

2. Employees in the Excepted Service:

• • Employees in the excepted service can also seek to appeal their termination during the probationary period, but with different criteria:
    • You must not be serving under an initial appointment; and
    • You must have completed 2 years of current continuous service in the same or similar position before the termination; or
    • You are a preference eligible employee who has completed 1 year of current continuous service in the same or similar position.

Why This Matters

Being terminated during your probationary period for reasons that have nothing to do with your conduct or performance is simply unfair and violates federal regulation.

Unfortunately, most probationary period employees will lack the ability to appeal their termination unless it was for partisan political reasons or marital status discrimination, which does not appear to apply to the mass probationary employee terminations carried about the Trump administration.  However, if you meet the above eligibility requirements, you may have an avenue for appealing the termination and possibly securing your position with back pay, benefits and attorney fees.

What Should You Do Next?

If you believe you meet the criteria for appealing your termination, it's important to take the following steps:

• Act Quickly: You must file an appeal with the MSPB within a specific timeframe (typically 30 days from the date you receive your termination notice).
• Consult with an Attorney: Given the complexities of federal employment law, it's recommended that you consult with an attorney specializing in federal employee rights. They can help ensure that you file the necessary paperwork and represent your best interests during the appeal process.

The new administration has moved quickly to terminate as many probationary period employees as they can. In doing so, they likely included certain probationary period employees who have due process and appeal rights. If this may apply to you, it is important to understand your rights, act swiftly, and seek professional legal advice to protect your career and ensure a fair review of your case.

If you are a probationary employee who was recently terminated and you believe you may meet the qualifications to have appeal rights, please contact The Law Firm of Matthew D. Estes to discuss your case free of charge.