There is help for probationary employees who were terminated

Thousands of probationary employees at the Department of Veterans Affairs, the Small Business Administration, the Agriculture Department and many other agencies received the bad news that they are being terminated this week.

One letter to a USDA employee, obtained by Federal News Network, stated, “until the probationary period has been completed, a probationer has ‘the burden to demonstrate why it is in the public interest for the government to finalize an appointment to the civil service for this particular individual.” The agency finds, based on your performance, that you have not demonstrated that your further employment at the agency would be in the public interest. For this reason, the agency informs you that the agency is removing you from your position.”

The shock and sadness can be heard across platforms like LinkedIN and Reddit where now former federal employees are posting their thoughts and making their availability known.

“The sad part is [they’re] not owning it; it’s orange man. I honestly don’t believe any fed agency is aligned with conducting these firing activities. It’s absolutely brutal. We have an all hands today. I’m sure that’s what it’s about. I’m on the chopping block. I’m a probationary employee. 8 years of service gone to… Truly crushed. Prayers for us all!” wrote one person on Reddit.

On probationary employee who was laid off from the Office of Personnel Management wrote on LinkedIN:

“Elon Musk has passed down an OPM order declaring that all probationary Federal employees (those hired within the past year) are to be fired! So if you’ve been eyeing me because of my wonderfully diverse skillset and competency with a range of Federal and Resort Hospitality Information Technology knowledge, send me a message!”

So what can these and thousands of other employees do going forward, besides begin their job search?

One labor and employment attorney with more than 20 years of federal experience said there are at least three things these job seekers should keep in mind:

• If not removed for misconduct, employees can continue federal health insurance for up to 18 months, but they must pay full premiums (employee and agency share) and there is an administrative fee. They file an SF-2809 which can be found on the OPM website. An option, if married to another federal employee, is to be added to your spouse’s federal health plan, because your loss of employment qualifies as a major life event and allows enrollment outside of Open Season.
• Your life insurance continues for 31 days.
• You may qualify for unemployment because your removal (as phrased in the OPM notification) is not based on misconduct. See your state’s Department of Labor or state unemployment office website.

Another labor and employment attorney reminded federal workers they do qualify for unemployment insurance.

“A common misconception is that you can fire a probationary employee for any reason (so long as it’s not discrimination, whistleblower retaliation, and/or political affiliation). That is not true,” wrote Michal Shinnar, an employment lawyer for Joseph Greenwald & Laake in a post on LinkedIN. “Just because they terminated you doesn’t mean it’s legal, and that you don’t have recourse.”

Unemployment insurance options

The Labor Department’s unemployment compensation for federal employees fact sheet explains:

“The UCFE program provides unemployment compensation for federal employees who lost their employment through no fault of their own. UCFE is administered by the states, the District of Columbia, Puerto Rico and the United States Virgin Islands who act as agents of the federal government. In general, the unemployment insurance (UI) law of the state in which the former federal employee had his/her last official duty station in federal civilian service will be used to determine eligibility for UCFE benefits. Accordingly, the same terms and conditions that apply to individuals eligible for regular state UI apply to UCFE claimants.”

Employees who are terminated also have appeal rights before the Merit Systems Protection Board.

The USDA notice said “such appeal must be filed within 30 days of the effective date of this decision or 30 days after the date of your receipt of this decision, whichever is later.”

But experts say appeals to MSPB for probationary employees are difficult to win because appeals are based on specific types of service.

Appeals are possible

The MSPB fact sheet on probationary employees appeals states:

“Your right to appeal your removal to the Board will depend on whether you meet the definition of an “employee” under the law (5 U.S.C. § 7511(a)(1)) and whether you meet the requirements of any OPM regulation that grants additional appeal rights. Whether you are an “employee” with appeal rights will depend in part on whether you are in the competitive service (defined in 5 C.F.R. § 212.101) or the excepted service (defined in 5 C.F.R. § 213.101).”

MSPB also says employees have the right to file an Equal Employment Opportunity complaint, a grievance or a request for corrective action with the Office of Special Counsel.

“You should quickly attempt to determine whether such options exist before you file an appeal, because frequently the type of review you seek first constitutes an ‘election of remedy’ that may limit or preclude other review options,” the board stated.

The American Federation of Government Employees condemned the probationary firings.

“This administration has abused the probationary period to conduct a politically driven mass firing spree, targeting employees not because of performance, but because they were hired before Trump took office,” said AFGE National President Everett Kelley in a statement. “These firings are not about poor performance — there is no evidence these employees were anything but dedicated public servants. They are about power. They are about gutting the federal government, silencing workers, and forcing agencies into submission to a radical agenda that prioritizes cronyism over competence.”

Another lawsuit filed

The National Treasury Employees Union filed a lawsuit on Wednesday in U.S. District Court for the District of Columbia, asking the judge to declare that the mass firing of probationary and other employees and the deferred resignation program, collectively, are unlawful.

The National Federation of Federal Employees (NFFE-IAM) added its voice to the concerns over these firings of probationary employees too.

“The President and Elon Musk are being intentionally dishonest with the American public by claiming the mass firing of federal employees and downsizing of the civil service are about efficiency and cost savings,” said NFFE National President Randy Erwin in a statement. “In reality, laying off thousands of important federal workers is inefficient and cruel. It is a tremendous task to hire and retain a skilled civil service, and indiscriminately dismissing qualified workers is an incredible waste of time and money. Firing tens of thousands of civil servants puts a massive strain on public services that Americans depend on every day and makes our country considerably less safe.”

Elon Musk, whom President Donald Trump has given wide leeway to slash government spending with his Department of Government Efficiency, called Thursday for the elimination of whole agencies.

“I think we do need to delete entire agencies as opposed to leave a lot of them behind,” Musk said via a videocall to the World Governments Summit in Dubai, United Arab Emirates. “If we don’t remove the roots of the weed, then it’s easy for the weed to grow back.”

Rep. Don Beyer (D-Va.) also put together resources for federal employees, including a civil service question and answer page, which he says is practical guidance to understand your rights as a federal employee, navigate emerging policies and take action to protect your career.

The Associated Press contributed to this article.

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