In a significant policy reversal, the Office of Personnel Management (OPM) has updated its guidance on managing probationary federal workers. The revision follows a legal challenge and a court order rescinding earlier directives aimed at terminating these workers.
The Hill reported that the controversy began with a directive issued by the OPM under the previous administration, mandating that all federal agencies list their probationary employees. These probationary periods typically last one to two years, varying by agency.
However, this action faced pushback from unions and eventually led to legal proceedings. The American Federation of Government Employees spearheaded a lawsuit challenging the legality of the firings, which culminated in a court victory.
U.S. District Judge William Alsup ruled that the termination of probationary employees under this directive was likely unlawful, prompting a reassessment of the policy by OPM.
Following Judge Alsup’s decision, the OPM issued a new memo on a Tuesday, starkly different from its initial stance. The revised guidance emphasized that it does not mandate specific actions regarding probationary employees, thereby shifting the responsibility to individual agencies.
The updated memo explicitly stated, "OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions."
This change aligns with the judge's assertion that OPM lacks the statutory authority to directly hire or fire agency employees.
The response from the American Federation of Government Employees to the revised memo was swift. They regarded OPM’s amendment as an acknowledgment of the initial guidance’s illegality, stating, "OPM's revision of its Jan. 20 memo is a clear admission that it unlawfully directed federal agencies to carry out mass terminations of probationary employees."
The union also called for immediate action from the agencies: "Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired."
Judge Alsup’s strong wording emphasized the lack of authority by the OPM to enforce such termination orders, noting, "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."
In court, Acting OPM Director Charles Ezell reinforced the stance that the OPM had not specifically directed the firings. His court statement clarified, "OPM did not direct agencies to terminate probationary employees, based either on performance or misconduct."
This assertion was crucial in distinguishing the OPM's role from the actions perceived by the public and the unions. The discourse surrounding the situation highlighted significant misunderstandings and disagreements about the extent of the OPM's authority.
The February 14 email from the OPM, following the initial memo, was also mentioned by Judge Alsup as part of the faulty directives that had to be rescinded.
Judge Alsup's decision not only halted the immediate impact of the OPM's directives but also served as a reminder of the boundaries of administrative power in personnel management. He added, "The agencies could thumb their nose at OPM if they wanted to," further underlining agency autonomy.
The litigation surrounding this issue has brought attention to the procedural safeguards in place to protect federal employees, especially those new to their roles and in probationary statuses. The outcome may influence future administrative actions and their legal oversight.