Update for Probationary and Trial Period Workers Subject to Mass Terminations

Updated April 10, 2025.

The mass terminations of probationary employees (including excepted service employees on a trial period) began on or around February 12, 2025. It is important that probationary employees who were let go in a mass termination understand what rights are available to them and what timelines apply to them. Deadlines for some actions may be as early as 30 days from the effective date.

We understand that navigating these options can be confusing and we are providing the information below to assist you in evaluating your options. As always, we suggest you consult with your union representative or legal counsel to discuss your specific situation.

Recent Court Rulings
There were two recent court rulings that blocked lower court orders requiring the government to reinstate tens of thousands of probationary employees. 

On April 8, the Supreme Court blocked a district court ruling that required the government to temporarily reinstate more than 16,000 probationary employees across six agencies – Departments of Defense, Veterans Affairs, Agriculture, Energy, Interior, and Treasury - while litigation is ongoing

On April 9, a federal appeals court blocked a separate district court ruling that required 20 federal agencies to reinstate terminated probationary employees across 19 states and the District of Columbia while litigation is ongoing.

Terminated probationary employees at the Department of Agriculture can, however, still continue to be reinstated until April 18 based on a ruling by the Merit Systems Protection Board.  

Complaint with the Office of Special Counsel
The Office of Special Counsel (OSC) is an agency within the federal government that is charged with, among other things, investigating allegations of prohibited personnel practices. OSC has the authority to petition the Merit Systems Protection Board (MSPB) to enter a stay that prevents agencies from taking personnel actions (such as terminating employees) during the investigation of a prohibited personnel practice complaint. We believe that mass terminations of probationary employees without regard to their individual performance or conduct constitutes multiple prohibited personnel practices. Accordingly, on February 14, Democracy Forward, in partnership with the Alden Law Group, filed a complaint with OSC asking it to investigate the mass terminations. We filed the complaint initially on behalf of six representative employees from different agencies, and we asked OSC to pursue a stay with the MSPB on behalf of those representative employees and all other similarly situated probationary employees across government. 

While OSC’s investigation is ongoing, it has agreed with us that the mass terminations likely constitute a prohibited personnel practice. OSC initially petitioned MSPB for a stay of the personnel actions against the six representative employees. MSPB agreed and entered the stay, returning them to work. Then, after we submitted additional arguments in support of broadening the relief, OSC petitioned the MSPB for another stay on behalf of employees at the U.S. Department of Agriculture. Last week, MSPB agreed and ordered that nearly 6,000 USDA probationary employees be returned to the job. 

We have further amended the OSC complaint to include representative employees from at least 26 agencies and continue to urge OSC to ask MSPB to expand the stay to cover all probationary federal employees who were unlawfully terminated. 

More information and FAQs on the OSC complaint are available on Alden Law Group's website.

Probationary employees who believe that their termination constitutes a prohibited personnel practice may file their own complaint with OSC. However, you should keep in mind that if you have already filed an appeal of your termination with the MSPB, you generally will NOT be able to file with the OSC (see below), because you may have “elected a remedy” at MSPB. Similarly, depending on your specific rights of appeal, it is also possible that filing with the OSC could constitute an “election” to proceed in that forum. Please read your termination letter and guidance from your agency carefully to help determine the rights of appeal your agency has indicated might apply to you.  

Appeals to the Merit Systems Protection Board
A different potential remedy for probationary employees may be through filing an appeal with the MSPB. Probationary employees are generally **not **covered by the adverse action procedures that provide most appeal rights to the MSPB. You should carefully review your termination notice to determine what rights you may have. Generally:

• Probationary competitive service employees have a narrow direct appeal to the MSPB if they allege their termination was discriminatory based on their marital status or political affiliation.
• Except service employees in their trial periods generally do not have the right to directly appeal their termination to the MSPB.
• Employees who have completed their probationary or trial period, regardless of whether they are in the competitive or excepted service, have the right to directly appeal their termination to the MSPB.

There are other circumstances under which probationary employees may have appeal rights to the Board. For example, when an employee is separated pursuant to a reduction in force, they may have appeal rights through their union or the MSPB regardless of their probationary status.

If you are interested in pursuing an MSPB appeal, pay close attention to relevant deadlines. The deadline for filing an appeal to the MSPB is typically 30 days from the effective date of the action being challenged, or 30 days from the date that you were notified that you had appeal rights, if the agency did not give you proper notice at the time of your termination

If you are interested in pursuing an appeal with the MSPB, please note that several law firms have filed appeals with the MSPB seeking to represent a class of probationary employees at various agencies where there was a mass termination. You can find more information about those efforts here.

If you would like to file your own appeal with the MSPB, you can do so through the MSPB’s e-appeal portal. Civil Service Strong has also developed this tutorial to assist you with filing your own appeal.