Probationary Periods: Use it or lose it


I recently did a series of training courses to managers and supervisors in a fairly large federal agency with two strong unions. The courses are designed to educate these managers on the rules that govern the firing of problem employees. The point of the course is to educate managers and supervisors on what can be a complex set of rules governing performance and conduct proceedings so as to empower them to act, and eliminate the myths about how hard each process can or should be. What came up over and over again in each session covering about 100 managers and supervisors across the country is the belief that they could not fire a probationary employee with a performance problem without first placing him or her on a PIP, and without going through progressive discipline for those probationers engaged in misconduct. I was nothing less than stunned. I shared this tidbit with a former CHCO of a cabinet level agency who had the same reaction. So what’s up? Why would the system veer so far off course? And does the entire federal HR community believe this is a best practice?

Here’s the law.  An agency is not legally required to place a probationer on a PIP for a performance problem or go through progressive discipline for acts of misconduct. Indeed, congressional intent in creating the statutory probationary period is that this time would be the get-acquainted period in which the employee has almost no rights, and thus theoretically on their best behavior.  So if an employee is having performance, conduct, or attitude problems in their get acquainted period, imagine how he or she will perform or behave when fully vested with all rights? The law does not require a PIP or progressive discipline for probationers. It’s like an at-will status.  Congress intended the federal employer to have more flexibility in this time frame to weed out (without conferring legal rights) the good from the bad, quickly and painlessly. The concept of requiring a PIP or progressive discipline is in complete contradiction of congressional intent.

What we heard from this group of managers and supervisors was a belief that the union contracts with AFGE and/or NTEU required this, or that HR had interpreted the union contracts to intend this, or that HR was being overly cautious to avoid a Union grievance or ULP and so they advised to proceed with PIPs and progressive discipline for probationers “to be safe.” Whether an agency entered into a Union contract to require that probationers be placed on PIPs or receive progressive discipline is not a legal issue, but rather one of policy, so I leave that alone except to say that negotiating such contracts with Unions is short sighted. The mood in this country and in Congress is that federal workers have far too many rights and should be an at-will workforce. So adding rights above the floor set by federal statute in a Union contract could eventually backfire.

The best practice is to use the probationary period as Congress intended, or you will lose it. And when the federal workforce loses the probationary period it won’t be to make all employees fully vested with all rights upon hiring, Instead, it will be the opposite. It will be to make all, some, or classes of federal workers completely at-will.  Most federal employees do not understand what it means to be at-will.  It means that the employer need not provide ANY reason for firing you, not promoting you, demoting or reassigning you. No reason, no due process, and no appeal right. My advice is to get back to the basics and use the probationary period as intended. As a practical matter, this legal tool allows management to get in front of a problem employee situation, and not tangled up in it.



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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