Trump administration rescinds guidance directing agencies to fire probationary employees

The Trump administration on Tuesday revised its guidance on probationary employment in the federal government after a judge ruled last week that the Office of Personnel Management lacked the authority to make hiring or termination decisions for other agencies.

The new guidance clarifies that agencies, and not OPM, are the final word when it comes to performance-based personnel actions.

“Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees," the new guidance states. "Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions."

The revised guidance comes days after a federal judge ordered the Office of Personnel Management to rescind its earlier instructions telling other federal agencies to “promptly determine" whether probationary employees "should be retained at the agency.”

Senior District Judge William Alsup of the Northern District of California ruled Thursday for a retraction of the initial Jan. 20 memo, saying that the Office of Personnel Management "does not have any authority whatsoever under any statute in the history of the universe, to hire and fire employees within another agency.”

Alsup’s ruling last week did not reinstate the thousands of recently dismissed employees, but it has affected efforts by the Trump administration to slash the federal workforce.

The new guidance from OPM also adjusts the definition of probationary periods. In the revised text, they are described as a tool for employee performance and to "ensure that 'a probationer’s conduct and performance have established that the individual will be an asset to the Government.'"

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The original guidance similarly referred to probationary periods as a performance assessment tool, but said that they also served to "manage staffing levels."

Employees are often classified as probationary if they were recently hired or if they took on a new position.

Asked about the revisions, a spokesperson for OPM said “this change was to help provide clarity in light of a recent court order" and what the spokesperson called "some public misinformation."

"It has always been up to agencies whether to take performance-based actions against probationary employees,” the spokesperson added.

American Federation of Government Employees National President Everett Kelley said in a statement that the Office of Personnel Management's revised guidance served as "a clear admission that it unlawfully directed federal agencies to carry out mass terminations of probationary employees."

"Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired,” Kelley said.