Make the best use of probationary period

There are good reasons for a probationary or trial period for new federal employees.

First, only so much can be learned from a job interview. Second, effective supervisory guidance and mentoring during the probationary period can help a struggling employee become an effective contributor. Third, if termination is necessary, it is easier to remove an employee during the probationary period than after.

Removal during the probationary period is not, however, without risk if it is done incorrectly. Managers should know how long the probationary period lasts. Some periods are for one year, and others, for two or more. Check with your human resources office to be sure, and keep track of the date.

The failure of an employee to survive a probationary period should never be a surprise to the employee. If it is, and particularly if the surprise of separation comes toward the end of the probationary period, the employee will be more likely to fight back with an equal employment opportunity complaint or an allegation of whistle-blower reprisal.

The failure of a manager to deal effectively with a poorly performing or misbehaving employee during the probationary period provides the complaining employee with at least a plausible argument that the termination was motivated by improper animus.

The reason it is easier to terminate an employee during the probationary period is because the employee does not have the right to appeal the removal to the Merit Systems Protection Board. Those employees with appeal rights enjoy the protection of requiring their agency to justify and prove allegations that specifically must promote the efficiency of the service. This is a different legal posture for an agency than merely defending an EEO complaint or a whistle-blower reprisal claim.

When dealing with a problem or struggling employee during the probationary period, the manager should avoid procrastination. He should document encounters with employees. Interim ratings should be accurate. There is nothing more difficult to explain than the reasons why a probationary employee who received an outstanding or glowing interim rating is suddenly, six weeks or two months later, fired before the end of the probationary period for poor performance with no intervening documentation.

Imagine the following scenario: A probationary scientist is working at a research lab and observes a co-worker in an orange suit pouring the contents of containers clearly labeled as containing toxic materials into navigable waterways. The probationary employee reports this incident to higher headquarters, to the safety office and to the Office of Inspector General.

The probationary scientist is then fired. The agency’s ability to survive an allegation of prohibited whistle-blower reprisal depends in large part on the level of documentation it has to support reasons for the firing that existed before the employee’s most likely protected whistle-blower disclosure of both a threat to health and a violation of law.

When an employee challenges a termination during the probationary period through an EEO complaint or by alleging whistle-blower reprisal the burden of proof is on the employee and it is difficult for an employee to succeed. Also, the process for the complaint to be heard is lengthy. With documentation and prompt dealing with problems caused by probationary employees, the likelihood of a successful challenge by an employee is diminished further.

The real advantage to dealing early with struggling probationary employees is that they might just turn around and work out. Also, if the person does not improve, it is easier for him to accept his fate if the manager has kept him informed of his lack of progress.

Office of Personnel Management rules prohibit an agency from putting the reasons for a probationary period separation on Standard Form-50, but agencies do use a code to reflect that the employee was separated during the probationary period.

An employee who does not want that blight on his record might voluntarily resign to have a clean SF-50, making it easier for him to find a job in another federal agency.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

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