In its hasty attempt to dismantle the civil service by firing probationary employees, the Trump administration swept in numerous employees who, although in the early days of a new position, were entitled to greater civil service protections due to prior federal service. This post provides a general overview of the circumstances in which employees can count their prior federal service to get greater protections under the law. For advice on your specific situation, we recommend consulting an attorney or your union, if you have one.
Under 5 U.S.C. 7513, an “employee” is protected from termination without cause. Further, the government must provide certain procedural protections, including at least 30 days’ advance notice, an opportunity to respond, and a written decision with the specific reasons for the decision. Needless to say, agencies did not follow these requirements when they sent template, near-identical notices to terminate employees in recent weeks.
But these protections only apply to workers who meet the definition of “employee” in 5 U.S.C. 7511. This definition excludes some federal workers, such as many competitive service employees in their probationary period (their first year on the job) and excepted service employees in their trial period (their first two years on the job).
However, if an employee worked in the federal government before they started their most recent role, they might meet the definition of “employee” even if they are in their first year or two of their current position. The statute lays out two routes for doing so. These routes differ depending on whether an employee’s most recent position was in the competitive or excepted service.
Competitive Service
1. Current continuous service
The most straightforward way for a competitive service employee to count prior federal service is through the “current continuous service” route. Under 5 U.S.C. 7511(a)(1)(A)(ii), an individual in the competitive service “who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less” is entitled to protections provided by 5 U.S.C. 7513.
The prior federal service does not have to have been at the same agency or even in the same or a similar job. There are only two catches:
First, there cannot be a break in service of even a single workday. 5 C.F.R. 752.402. A break in service of even a couple of days will prevent you from meeting this definition.
Second, the prior service cannot have been in an appointment that was limited to a year or less. If you had a one-year fellowship, even if it was effectively the same job, you cannot count that time.
2. Counting prior service toward completion of the probationary period
If you had a short break in service or if your prior service was a one-year appointment, you might still be able to count your prior service under 5 C.F.R. 315.802. That regulation says that your prior federal service counts if it meets the following criteria:
a) It was in the same agency;
b) It is in the same line of work; and
c) Contains or is followed by no more than a single break in service that does not exceed 30 days.
If you previously had a one-year fellowship that led to permanent employment, or had a short break in service, you might qualify for greater civil service protections based on this route.
Excepted Service
If your most recent position was in the excepted service, it is a little harder to count your prior federal service.
1. Current continuous service
5 USC 7511(a)(1)(C)(ii) provides protections to an individual in the excepted service who has “completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.”
For those who are eligible for a veterans’ preference, only one year of prior service is required. 5 U.S.C. 7511(a)(1)(B).
Just like in the competitive service, there cannot be a break in service of even a single workday. 5 C.F.R. 752.402. A break in service of even a couple of days will prevent you from meeting this definition.
Unlike the competitive service though, you also have to show that your prior service was in “the same or [a] similar position.” The regulations define “similar positions” as: “positions in which the duties performed are similar in nature and character and requires substantially the same or similar qualifications, so that the incumbent could be interchanged between the positions without significant training or undue interruption to the work.”
2. Counting prior service toward completion of the trial period
The MSPB has held that excepted service employees can count prior service toward completion of their trial period under the same circumstances as can competitive service employees. See McCrary v. Dep’t of the Army, 103 M.S.P.R. 266 (2006).
That means you can count your prior service toward completion of your trial period if :
a) It was in the same agency;
b) It is in the same line of work; and
c) Contains or is followed by no more than a single break in service that does not exceed 30 days.
If you previously had one-year fellowships that led to permanent employment, or had a short break in service, you might qualify for greater civil service protections based on this route.
I meet one of these definitions! Now what?
If a federal worker meets one of the above definitions, that person likely is an “employee” under 5 U.S.C. 7511 and has civil service protections under 5 U.S.C. 7513, including protection from termination without cause and procedural protections. Employees in this situation may have claims that are different from those that will be raised in class action appeals recently filed at the MSPB and should consider filing an individual appeal. Civil Service Strong has published a guide to filing MSPB appeals here. We also recommend that employees consult with an lawyer or labor union regarding their rights and appeal options.
-Charlotte Schwartz, senior associate at James & Hoffman.