Keep track of probationary periods


One of the most effective but least utilized tools managers have is the probationary period.

For employees, probationary periods are important and not to be overlooked because workers have little recourse if they are let go during a probationary period, no matter how unjust the decision may be.

For managers, it is simply easier to fire a problem employee during the probationary period. However, confusion about probationary periods and the complexity of varying rules and requirements under myriad hiring authorities often deter managers from effectively using this tool.

There are many misconceptions about probationary periods. A manager may mistakenly believe that a particular probationary period is two years or longer when in fact it may have lapsed for some of the reasons discussed below. Other managers may believe new probationary periods are permitted when employees transfer to a new agency. This is no longer true.

Confusion arose, and may still exist, because for many years,Office of Personnel Management regulations incorrectly said that agencies could (1) require a new probationary period for competitive service employees transferring from other agencies and (2) set a longer trial period for excepted service employees than the now applicable two-year trial period of service applied to all except preference-eligible employees. The regulations were amended in 2008 to state the rules for probationary periods that had been decided years earlier by the U.S. Court of Appeals for the Federal Circuit.

As a general rule, once a competitive service employee completes one year of probation, he cannot be required to serve a new probationary period even if he transfers to a new agency, so long as he continues in the same line of work. The same one-year rule also applies to preference-eligible employees, for both competitive and excepted service.

Excepted service employees who are not preference-eligible have a two-year trial period. An employee from the competitive service who goes to a new agency through an excepted hiring authority, such as the Federal Career Intern Program, without a break in service and performing the same tasks, can count competitive service time toward the two-year probationary period.

Some agencies have structured their intern programs with longer trial periods or require an affirmative decision before allowing a FCIP or other excepted service employee to receive a competitive service appointment. Regardless, the probationary period is over when two years of continuous employment have passed.

In assessing probationary periods, managers and human resources professionals should make sure they compute the period correctly, taking note of veteran’s preference and prior-service entitlements. Once a probationary period has been determined, the supervisor should pay careful attention to the end date and take prompt action. Do not go down to the wire by removing an employee on the last day of probation. There are several Merit Systems Protection Board decisions reversing last-day dismissals because the removal takes place at midnight and the probationary period is then over.

Two more suggestions: Document occurrences that led to the decision to terminate, and give the employee a chance to improve before making the decision. Neither suggestion is a requirement, but they serve as a good defense if an employee files an equal employment opportunity complaint.

One of the best sources for clarity on probationary periods is a 2007 MSPB report, “Navigating the Probationary Period after Van Wersch and McCormick.” The report references the deciding Court of Appeals cases and can be downloaded from MSPB.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to

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