ASK FELTG: In light of Van Wersh/ McCormick, do you have any suggested language for a waiver of appeal rights in exchange for a new appointment?

September 24, 2019

Challenges to waiver language have not come up enough in caselaw since Van Wersh for us to have definitively worded notice language. However, the basic principle of waiver is that notice must be clear for any subsequent claim of waiver to be knowing. Many agencies provide a general statement in their offer letter.

Some may state something to the effect of:

“I understand I am required to serve a new probationary period in accordance with 5 CFR 315. My rights and entitlements for adverse and disciplinary actions will be processed in accordance with the provisions of the CFR, part 315.”

Here’s what’s going to happen when we try to get anyone who has signed the language above to testify that they knew what was happening:

Attorney: Did you see the reference to 5 CFR 315 when you signed the notice?

Appellant: Yes.

Attorney: What did you think it meant?

Appellant: Well, I thought it was referring to the Council of Foreign Relations in upstate New York, area code 315

Let’s start with a blank page. We prefer explicit language to clarify what is happening. Also, we take the approach that the employee is not waiving anything, but instead understands that he will have only probationary appeal rights in the new position. In other words, he’s not actually giving up any rights; he just won’t have any rights to begin with.

Here’s a statement you could use:

“I understand that for my first year of employment in this position, I will be serving in a probationary period, even though I have had prior federal service. As a probationer, I will have limited appeal rights and procedures available to me (Title 5 Code of Federal Regulations) rather than the more extensive rights of a career employee (Title 5 Code of Federal Regulations Part 752). I have had the opportunity to ask questions of a human resources specialist regarding service in a probationary period.”

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