Author: federalworkerrights

What does the Supreme Court’s latest decision about probationary employees mean?

federalworkerrightsLeave a comment

Please note that this post does not constitute legal advice about your individual circumstances, and our firm only represents you if you have a signed representation agreement with our firm.

Background: Two courts ordered agencies to rehire federal workers.

After the Trump Administration’s mass terminations of probationary and trial employees in February,  a coalition of law firms filed approximately twenty class actions at the Merit Systems Protection Board (MSPB), challenging the terminations. At the same time, unions, nonprofits, and states filed suit in federal court, calling for an injunction to halt the terminations and put federal workers back on the job while litigation progresses.

Last month, two federal courts agreed, ordering the Trump Administration to reinstate thousands of probationary federal workers in two separate decisions. First, Judge Alsup of the Northern District of California granted a preliminary injunction requiring reinstatement of employees at six agencies: Veterans Affairs, Agriculture, Interior, Energy, Defense, and Treasury. Second, Judge Bredar of the District of Maryland issued a preliminary injunction and opinion requiring reinstatement of employees at eighteen agencies. Together, the temporary court orders issued by Judges Alsup and Bredar required the government to reinstate the vast majority of terminated probationary employees. 

Both judges correctly recognized that the Government broke the law through its unprecedented mass terminations of probationary employees. They held that plaintiffs were likely to succeed on the merits, and that allowing the Trump administration to continue with the terminations during litigation would cause irreparable harm.

Their orders provided an early victory for all those affected by the illegal terminations. However, the government quickly appealed both decisions.

What just changed?

On Tuesday, April 8, 2025, the Supreme Court put an indefinite pause on the Northern District of California’s order, which required six agencies to reinstate probationary workers. Then, on Wednesday, April 9, 2025, the Fourth Circuit Court of Appeals also paused the District of Maryland’s order, which applied to a broader set of agencies. That means that right now, neither of those orders are in effect.

These decisions do NOT mean that the Trump Administration’s mass terminations of probationary workers were legal. These decisions were not about the merits of the argument that the government violated the law when it terminated thousands of probationary workers. Rather, these decisions are about who can challenge the Trump Administration’s illegal mass layoff and what process they have to use to do so.

The plaintiffs in the Northern District of California case were third-party groups (like non-profits) who argued that the government’s mass termination of federal workers hurt them. The plaintiffs in the Maryland case were nineteen states and the District of Columbia, arguing that violations of the RIF rights harmed them. In each of those cases, the Administration is arguing that—because these claims are about federal workers’ rights—they have to go to the MSPB before they can go to federal court. The Administration is also arguing that those third-party groups don’t have “standing” (that is, that they don’t have the right to bring those cases).

This week, the Supreme Court and the Fourth Circuit said that it is not clear that those third-party groups or state Attorneys General can bring these claims. Those courts did not say that the terminations were lawful—in fact, they didn’t address the legality of the terminations at all.

What does that mean for terminated probationary employees?

Without a court order in place, some agencies may attempt to reinstitute their prior terminations of probationary employees.

On April 10, the Commerce Department began firing probationary and trial period workers again—saying that because the Maryland order was no longer in effect, the Department was “reverting [workers’] termination action to its original effective date.” If you work at another agency and have received a similar letter, you may contact us at FedEmpClass@jamhoff.com, but please note this would be for our informational purposes only.

What does this mean for the pending MSPB class appeals?

The class action appeals filed by James & Hoffman and other law firms at the MSPB are still moving forward. Most cases are currently in discovery.

On a practical level, the decisions this week may embolden the Administration to begin targeting workers for termination again. But that doesn’t make it legal to do so.

At this time, employees do not need to do anything to be covered by these appeals. Individuals who are not named plaintiffs may benefit from relief achieved in a class action, if the class is certified. Further, employees do not need to be clients of the firm to benefit from the class action.

* * *

Finally, we want to acknowledge that this is a destabilizing and difficult time for federal workers. We are committed to continuing to challenge these unlawful firings at the MSPB.

-Sejal Singh, attorney at James & Hoffman

.

Two courts have ordered reinstatement of probationary employees. What happens next?

federalworkerrightsLeave a comment

UPDATE: As of April 9, 2025, the preliminary injunctions issued in both the California and the Maryland cases have been stayed by higher courts. That means that there is currently no court order preventing government agencies from re-terminating probationary employees. We have heard reports that at least one agency, the Department of Commerce, has started re-terminating probationary employees, reverting the effective date back to February 2025. The MSPB class actions for probationary employees remain pending.

***

On Thursday, two courts issued orders requiring reinstatement of probationary employees.

First, Judge Alsup of the Northern District of California granted a preliminary injunction requiring reinstatement of employees at six agencies: Veterans Affairs, Agriculture, Interior, Energy, Defense, and Treasury. Under the order, reinstatement was supposed to occur “immediately.” The order was issued orally in a hearing, followed by a written opinion with further explanation.

The preliminary injunction goes a step further than the prior opinion by Judge Alsup granting a temporary restraining order. In that opinion, the judge found that OPM had acted outside its authority by ordering the terminations and that non-profits could challenge the terminations, but he did not order reinstatement as a remedy.

Second, Judge Bredar of the District of Maryland issued a temporary restraining order and opinion requiring reinstatement of employees at eighteen agencies. The list of agencies includes five of the six covered by Judge Alsup’s order (omitting only DOD). In addition, the order includes other major agencies such as Health and Human Services, Commerce, and Transportation. Collectively, the orders by Judges Alsup and Bredar require the government to reinstate the vast majority of terminated probationary employees. Under Judge Bredar’s order, employees must be reinstated by Monday, March 17, at 1:00 PM.

In issuing his order, Judge Bredar relied on the agencies’ failure to follow legally-mandated procedures for reductions in force (RIFs), including procedures designed to help states prepare for the termination of their residents and potential disruption of federal services within the states. For example, agencies are supposed to provide advance notice of RIFs to states, just as they are supposed to provide notice to affected employees. Here, no notice was given.

Both judges correctly recognized that the Government broke the law through its unprecedented mass terminations of probationary employees. Their orders provide an important victory for all those affected by the illegal terminations.

What happens next?

It is unclear if the Government has complied with Judge Alsup’s order, which required immediate reinstatement as of Thursday. The media has reported on reinstatement of employees at the Department of Energy, but there do not seem to be similar reports for all of the other agencies covered by the preliminary injunction. Meanwhile, Judge Bredar’s order requires reinstatement by Monday at 1:00 PM, so we do not yet know if the Government will comply.

The Government quickly appealed both orders. Further, it sought an emergency stay of Judge Alsup’s order from the Ninth Circuit Court of Appeals. If granted, a stay would mean that agencies would have no obligation to reinstate employees while an appeal is pending.

Presumably, the Government also intends to seek a stay of Judge Bredar’s order from the Fourth Circuit Court of Appeals. And if stays are not granted at the circuit court level, the Government may seek that relief from the Supreme Court.

We should know more in a few days about whether the Government will comply with the orders and whether an appellate court will stay the orders.

How do these orders relate to class actions at the MSPB?

As previously discussed here, a coalition of law firms has filed class action appeals at the MSPB to challenge the termination of probationary and trial employees at many agencies.

The Government is trying to use the possibility of MSPB appeals to argue that courts should not intervene here, but should rather let the MSPB resolve the issue. Judges Alsup and Bredar both rejected that argument, and for good reason.

First, the MSPB cannot provide the relief sought by the non-profits and states who brought the cases. Those entities cannot file claims at the MSPB, and the MSPB cannot repair their injuries in a complete or timely manner. For instance, in the California case, non-profits argued that the terminations were impairing government services, such as maintenance of public parks. But even if employees’ MSPB appeals are successful, they will not obtain relief in the coming months, and even when relief is issued, agencies could potentially attempt to comply with MSPB orders by placing employees back on the payroll without actually putting them back to work.

Likewise, the court cases, even if successful, may not provide all of the relief sought by employees in MSPB appeals. For instance, it is unclear whether the orders by Judges Alsup and Bredar require agencies to provide backpay. The Government could argue that backpay is not necessary to remedy the harms asserted by the plaintiffs, such as disruption of public services.

In short, the MSPB appeals and court cases have been brought by different parties, with different interests, seeking different relief.

Second, the current administration has sought to cripple the MSPB by removing one of its board members, Cathy Harris, leaving the board unable to decide cases. Litigation on this issue is ongoing. If the administration succeeds, it may prevent employees from obtaining timely relief through the MSPB, while transforming the MSPB from an independent oversight body to one under the thumb of the President who ordered the terminations.

Employees had no choice but to file MSPB appeals within the short window for doing so, to preserve their rights to challenge their terminations. But the filing of those appeals should not be taken to mean that the employees or their lawyers believe that courts should step aside. On the contrary, the judges correctly found they had authority to act, and their orders are necessary to address these unlawful terminations in a timely manner.

Can you be fired if you don’t respond to Elon’s latest email?

federalworkerrightsLeave a comment

Earlier today–on a Saturday afternoon–federal government employees received an email instructing them to “reply to this email with approx. 5 bullets of what you accomplished last week.” The email provided a deadline of 11:59 PM on Monday. A few hours earlier, Elon Musk had previewed the email, commenting that “failure to respond will be taken as a resignation.”

Is it unclear what Musk is trying to do here. One way to interpret the email is as an attempt to humiliate federal employees by making them justify their job–not to their supervisor or agency management, but to some other entity. (The emails were sent from HR@opm.gov.) In doing so, the email worsens morale and may lead to resignations, which advances Musk’s project of shrinking the federal workforce. Another possibility is that the email is a loyalty test, a way of identifying which employees will respond to an unusual request from outside their chain of command.

The email raises several questions. What if an employee is on leave on Monday? What if all of their work is classified?

But the question most pressing for federal employees is whether their job is at risk if they ignore the email. We can’t answer that question definitively. But it might be that the answer is relatively simple: if agency management tells an employee to respond, the employee should do so. Failure to follow such a directive would arguably constitute insubordination. But absent such a directive from within their agency, it seems an employee could not easily be charged with insubordination for ignoring the email, nor could an employee be deemed to have resigned by ignoring it. (On the latter point, see Nick Bednar’s helpful analysis here.) If an employee is instructed by agency leadership to not respond, the employee should follow that instruction as well.

This is because employees generally have an obligation to comply with an “authorized order of a superior officer.” Phillips v. Gen. Servs. Admin., 878 F.2d 370, 373 (Fed. Cir. 1989) (emphasis added). But here, the directive arrived in an unsigned email from HR@opm.gov. It seems unlikely that HR@opm.gov could be deemed any employee’s “superior officer,” at least for employees who do not work at OPM itself.

Of course, this does not mean that employees face no risk if they ignore the email, even if they have not been directed to respond by management within their agency. In the current climate, all federal government employees face a risk of termination, even when there is no legal basis to fire them.

However, it may be that the real challenge posed by the email is to supervisors and agency leaders. Will they instruct their subordinates to respond to the request despite its bizarre and humiliating nature?

“DOGE Workforce Optimization”: the latest executive order targeting federal employees

federalworkerrightsLeave a comment

Updated February 13, 2025

Earlier this week, the Trump administration announced a sweeping new effort to downsize the federal workforce. Reflecting the degree of control now exercised by the Department of Government Efficiency over federal personnel policy, the executive order is titled, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.”

Much remains unknown about how this order will be implemented. Parts of the order have already been challenged in court by a coalition of unions representing workers inside and outside government. Other parts of the order may yet be challenged.

The core provisions of the order can be divided into two categories: (1) provisions related to terminating current employees, and (2) provisions related to hiring new employees.

Terminations

To start with terminations, the order directs agencies to prepare for “large-scale” layoffs, known as reductions in force (RIFs). The order designates the following categories of employees for potential layoffs: Employees who “perform functions not mandated by statute or other law”; employees who work on DEI initiatives; and employees who “are not typically designated as essential during a lapse in appropriations.”

This order does not specify particular numbers or percentages of employees to lay off. It also does not say when agencies should conduct layoffs.

Apparently, agencies are expected to conduct these mass terminations on top of firing most probationary employees.

Also related to terminations, but likely with a smaller and less immediate effect, the order directs OPM to develop new “suitability criteria,” which may provide a basis for terminating employees in the future.

Hiring

On the hiring front, the order requires agencies (via a plan to be developed by OMB) to “hire no more than one employee for every four employees that depart.” While not directly affecting current employees, this provision would appear potentially devastating to numerous critical government functions.

A person seeking to defend the administration might argue that this restriction is no more onerous than the hiring freeze previously announced via Presidential memorandum. But the freeze was limited to 90 days, except at the IRS. This new order is framed as a long-term restriction. (There is a provision for reassessment after 240 days.)

Separately, the order inserts DOGE into the hiring process across the entire federal government. Among other provisions, an agency cannot fill a vacancy for a career position without DOGE’s approval, unless the agency head overrules DOGE. This is a remarkable restriction. It appears the agency chain of command for hiring is now: (1) Agency head, (2) DOGE, (3) everyone else at the agency.

Exceptions

The provisions described above are subject to some exceptions:

  • None of the provisions apply to military personnel.
  • The 4-for-1 hiring restriction and RIF provision do not apply to “functions related to public safety, immigration enforcement, or law enforcement.”
  • Agency heads may exempt positions “necessary to meet national security, homeland security, or public safety responsibilities.”
  • The OPM Director may grant exceptions.
  • The 4-for-1 hiring restrictions does not apply to the IRS, which is subject to an indefinite hiring freeze under a prior presidential memorandum.

This is a preliminary analysis, not necessarily addressing all aspects of the order.

For updates on issues affecting federal workers, follow our Bluesky page.

Does termination affect a federal employee’s retirement benefits?

federalworkerrightsLeave a comment

As the Trump administration seeks to downsize the federal government, some employees may be assessing their potential financial situation in the event of termination. Retirement benefits are an important part of the picture.

Fortunately, for the vast majority of employees, termination has no negative effect on retirement benefits, at least once those benefits are vested. (We discuss vesting timelines below.) This remains true even if the employee is accused of misconduct. There are a few narrow exceptions, discussed at the end of this post.

Some caveats before we go further: Federal retirement rules are complicated. For advice specific to your situation, consider consulting a union, attorney, or other expert. The discussion below applies to most federal employees covered by the Federal Employees’ Retirement System (FERS), which took effect in 1987. We do not discuss less common benefits such as the annuity supplement.

Federal employee retirement benefits

Federal employees generally receive three types of retirement benefits: (1) participation in the thrift savings plan, (2) an annuity based on salary and years of service, and (3) social security. We now discuss each.

Thrift savings plan

Federal employees are immediately vested in the thrift savings plan as to their own contributions and the agency’s matching contributions. This means the employee is entitled to keep those funds regardless of what may happen with their employment.

As to the agency’s 1% automatic contribution, an employee becomes vested after working in the government for three years, or two years for some narrow categories of employees.

For more details, see here and page 5 here.

An employee’s benefits under the thrift savings plan are not affected by termination, once the employee is vested.

Annuity

There are several paths through which a federal employee can become entitled to an annuity. Under most of these paths, it does not matter whether the employee was terminated or left government voluntarily.

First, an employee can choose to immediately start receiving an annuity if they fall into any of these categories:

In these categories, an employee’s eligibility is not affected by termination.

Certain categories of employees may be entitled to a full annuity earlier than set forth above. These include law enforcement officers, firefighters, CBP officers, and air traffic controllers, who become eligible after 25 years of service, or after 20 years of service at age 50. 5 USC 8412(d)(1) and 8412(e).

In addition, as a general matter, employees who are involuntarily terminated can retire early after 25 years of service, or after 20 years of serve at age 50, with some exceptions. 5 U.S.C. 8414(b).

However, for these categories of employees, the employee may lose the right to retire early if removed “for cause on charges of misconduct or delinquency.” 5 USC 8412(d)(1) and 8412(e); 5 U.S.C. 8414(b). But this does not affect the employee’s eligibility for regular retirement as described above. We discuss further at the end of the post.

Social security

Social security benefits are not affected by termination.

The situations in which termination affects retirement benefits

There are rare cases in which termination may affect retirement benefits.

First, if you are terminated before you are vested, then your benefits may be affected. As noted above, employees are typically vested after three years of service for the TSP and five years of service for an annuity. However, you always remain entitled to your own TSP contributions and the government’s matching contributions, even if you are terminated with less than three years of service.

Second, in certain cases, employees may lose the right to retire early if removed for misconduct. However, this limitation does not apply if you have reached normal retirement milestones (like age 60 with 20 years of service). Also, it does not apply to employees separated for performance issues or due to a reduction in force. Further, there are legal options for challenging an accusation of misconduct affecting retirement benefits.

Third, employees may lose retirement benefits if convicted of certain serious crimes such as espionage (5 USC 8312), and in other similar situations (5 USC 8313, 8314).

Finally, different rules may apply to foreign service officers, employees of the VA covered by Title 38, workers hired into the government before 1987, and other limited categories of employees.

For updates on issues affecting federal workers, follow our Bluesky page.

-Danny Rosenthal and Charlotte Schwartz, attorneys at James & Hoffman.

When are federal government employees entitled to time-and-one-half overtime pay?

federalworkerrightsLeave a comment

Many federal employees are entitled to time-and-one-half overtime pay under the Fair Labor Standards Act (FLSA). But federal agencies do not always comply with the law. This post will provide a list of questions to consider if you’re not sure whether you should be getting paid time-and-one-half.

1. Are you designated as exempt from the FLSA? If so, is your designation legally correct?

Under the law, some employees are “exempt” from the FLSA. Exempt employees may include supervisors, professional employees such as lawyers and doctors, and some employees who perform administrative functions such as accounting and HR.

On your SF-50, box 35 states whether you are exempt (E) or non-exempt (N). This information may also be on leave and earnings statements.

If you are non-exempt from the FLSA, you are entitled to time-and-one-half overtime pay. If you are exempt, then you are not covered by the FLSA.

But sometimes, federal agencies incorrectly designate people as exempt. These mistakes may arise because HR officials have misconceptions about what makes an employee exempt. For instance, some agencies wrongly assume that all employees above a particular pay grade, like GS-12, must be exempt. In other cases, coding errors may occur even when the agency recognizes that employees should be non-exempt.

Therefore, even if you are classified as exempt, you should consider whether that classification is incorrect. More information is available here.

If your position is correctly designated as exempt from the FLSA, you might still have a right to some form of overtime compensation, depending on your pay grade and other factors.

2. Is the work compensable?

Even for non-exempt employees, there can be questions about whether the employee is entitled to pay for certain activities. For example, employees may spend time answering calls or responding to emails on the weekend, but supervisors might discourage them from reporting that time on their time sheets.  

Generally speaking, for a non-exempt employee, all work is “compensable” if the employer knows about it or allows it to occur. Employees should be paid for this work.

There are several categories in which federal agencies sometimes fail to pay employees for compensable work. These include time on work travel, which is sometimes compensable depending on the circumstances; time attending training; time performing work during meal breaks; and time responding to emails and calls after hours and on weekends as referenced above.

3. Did you voluntarily choose to receive compensatory time?

In some cases, employees receive compensatory time for overtime work instead of pay. However, for non-exempt employees, the agency must provide the employee a choice between pay and comp time. In fact, the law states that compensatory time can be granted only if the employee requests it. See 5 U.S.C. 5543.

In other words, if you are a non-exempt employee and you have not voluntarily chosen to receive compensatory time, you should get time-and-one-half overtime pay.

For more information, including citations to statutes, regulations, and OPM documents, visit our page on pay and overtime.

Lawsuit regarding late payments at the FAA

federalworkerrightsLeave a comment

On March 22, 2023, the law firms James & Hoffman and Bernstein & Lipsett filed Taddeo v. United States, a lawsuit in the United States Court of Federal Claims on behalf of an FAA air traffic controller who was denied timely payment of wages, including overtime pay. The complaint is here. The complaint alleges that the FAA violated the Fair Labor Standards Act by failing to ensure timely payments of wages and seeks liquidated damages on behalf of affected employees.

The law firms are pursuing this case on a contingency basis, meaning that the firms will not collect any fees from the plaintiffs if the claim does not prevail.

If you are an FAA employee who has been affected by untimely wage payments during the past three years, and you are interested in pursuing legal action, you may fill out the retainer agreement and consent form here and submit it via email to dmrosenthal@jamhoff.com.

For more information about the case, contact lead counsel Daniel Rosenthal at dmrosenthal@jamhoff.com.

Lawsuit regarding overtime pay at the VA

federalworkerrightsLeave a comment

As discussed on our Pay & Overtime page, federal government employees are sometimes denied overtime pay to which they are entitled under the Fair Labor Standards Act (FLSA) and other laws.

Two law firms, James & Hoffman and Bernstein & Lipsett, are pursuing a lawsuit under the FLSA for employees at the Department of Veterans Affairs in the Diagnostic Radiological Technologist job series (0647). These employees were classified as “exempt” and thus not paid time-and-one-half overtime pay. Instead, they were paid a lesser amount of overtime pay.

If you are an employee at the VA in this job series and are classified as “exempt,” you may be able to participate in the case. You can request more information by contacting the following email address: VAcase@jamhoff.com.