UPDATE February 24, 2025, 230 PM The Office of Special Counsel, an independent government agency, has reportedly made an initial finding that the mass terminations are illegal and has asked the Merit Systems Protection Board to issue a “45-day stay on the firing decisions.” We do not yet know the details of this finding or the request to the MSPB.
Several federal agencies have begun mass terminations of probationary employees. Other agencies are expected to follow soon.
The administration is targeting probationary employees because they lack certain legal protections that apply to permanent employees. For background on the rights of probationary employees, we recommend this article by Suzanne Summerlin at Just Security.
Still, there are potential avenues to challenge these terminations.
For employees represented by a union, we recommend consulting the union to see if a grievance can be filed under a collective bargaining agreement. Some agreements permit grievances on behalf of probationary employees while others do not.
Other legal claims may be available as well.
If an agency has terminated some but not all probationary employees, employees should consider whether the selection was discriminatory. Federal agencies may not discriminate on the basis of race, sex, sexual orientation, gender identity, disability status, or age. Likewise, agencies cannot target employees on the basis of partisan political reasons or marital status, nor can they retaliate against employees who have complained of various kinds of illegal discrimination.
Importantly, all of these protections apply to probationary employees. Thus, for example, a legal claim may arise if two probationary employees perform similar job duties and have similar performance reviews, but only the employee in a protected group is fired.
On the other hand, different claims may be available if an agency terminates most or all probationary employees, or terminates all probationary employees within particular offices or performing specific functions. Employees might argue that a blanket termination of this kind really constitutes a reduction in force (RIF), even if not labeled as a RIF by the agency, and that the agency has failed to follow the RIF procedures established in regulations. These procedures include notice of 60 days in most cases. Probationary employees have the right to challenge a RIF that is not conducted in accordance with the required procedures. (5 CFR 351.202 (establishing broad coverage of RIF procedures and appeal rights))
More broadly, the administration may be violating the Administrative Procedures Act and the U.S. Constitution through its unprecedented attempt to cripple federal agencies. For example, the administration’s attacks on USAID and the CFPB have led to lawsuits raising these claims.
***
James & Hoffman is considering legal action on behalf of probationary employees affected by mass terminations. For an update as of February 16, 2025, see this post.
If you are in this situation, feel free to fill out our survey. You can also search for lawyers who may be able to represent you in a directory published by the National Employment Law Association.