Civil Service Reform and Probation

By Barbara Haga, December 14, 2016

I am taking advantage of this FELTG vehicle to share some thoughts that the new administration might take into account in making decisions about what sort of reform might improve the civil service system.  Lots of people are doing this – there seems to be a real possibility that we might see it in the next administration.  It’s time.  It’s been 38 years since the last major overhaul of the civil service system.

In this article, I am taking exception with the recommendations that have been made by one group. A report entitled “Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration” was issued on October 17 by a group of 12 organizations, including the Partnership for Public Service, the Federal Times, Government Executive, Young Government Leaders, and the Senior Executives Association.  You may access the document at this site:

https://s3-us-west-2.amazonaws.com/cmpdigital/transitions/Transitions2016Report.pdf

The report says that it was prepared to make suggestions on improving management of the Federal government, and was the culmination of 18 months of research “…involving a bipartisan collection of political and career officials in a variety of Administrations.”

When I read the report, I was surprised by some of the recommendations, and I will address other parts of the report next month.  In this column, I am going to deal with recommendations regarding the probationary period, including the suggested fix as well as the information it is based on.  There are some well-known organizations and the association that represents the interests of the Senior Executives whose names are on this report.  It is regrettable that they are confused about the basics of due process and that they are advising the new administration based on misinformation.

A Three to Five Year Probationary Period 

Page 27 of the report contains the following:

Currently federal employees receive merely a one-year probationary period and on day 366 they are automatically (without action from the supervisor) afforded permanent status.  This current policy (which is not enshrined in law and can be administratively changed) encourages a passive approval of employees who later present performance problems.

The Administration should extend the probationary period to 3-5 years and require a pro-active certification by a manager that a probationary employee should be granted permanent status.  If an employee is not certified by the 3-5 year period, the employee would be automatically terminated.

Part of the incorrect information here is that the employee becomes “permanent.”  Permanent is a term we use in the staffing business when a job doesn’t have a time limitation, like a temporary or a term appointment would have.  Probationary employees don’t become permanent, what they acquire is appeal rights.  So, to take action on day 366 involves the full complement of due process rights, including notice, right to representation, right to review the material relied upon, and a chance to appeal to the MSPB.

Those of us with significant experience in the business know that it isn’t always a one-year probationary period.  For example, non-preference eligibles in the excepted service have a two-year trial period before they acquire rights, not a one year period.  An employee converted in place may have a probationary period that is shorter than one year, because temporary service is credited toward completion of the probationary period (remember Van Wersch and McCormick from a few years ago?).  If you are not familiar with those two decisions, the MSPB prepared a report on navigating the probationary period which you can read here:

http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=276106&version=276415&application=ACROBAT.  As recommended in the report, OPM revised the regulations regarding crediting service toward completion of the probationary period.  Final regulations were issued on February 7, 2008 (73 FR 7187-7188).

The transition report is correct that OPM implements regulations to control the length and operation of probationary periods.  But their regulations don’t confer appeal rights – that’s 5 USC 75.  So, OPM can require probationary periods of twenty years, but the employees are still going to have appeal rights on day 366.

OPM can’t resolve this – if they could have I think they would have done it a long time ago.  The report should suggest that Congress change 5 USC 7511(a)(1)(A)(ii) to eliminate the phrase “who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less,” so that prior service doesn’t count.

Do We Need that Long to Decide?

I, for one, don’t think we need a longer probationary period.  I think we need to better manage what we have. I have never seen a case, in my decades of working in this business, when the manager didn’t know pretty quickly that the person didn’t have what the job required.  It just took him or her ten or eleven months to come to HR to do something about it.

Have we in the HR business contributed to not properly utilizing the probationary period?  I think we have.  In the olden days when I started doing ER work, most agencies sent notices to managers about 90 days before the probationary period was set to end requiring a certification that the employee should be retained.  With automation and downsizing in some agencies’ HR staffs, these certification reports were dropped and HR offices said that managers could now see the probationary period ending date in the system and that they should stay on top of that and let us know when something was going wrong.

I agree with the report’s suggestion that affirmative certification should be required.  I would propose that the notice go to the supervisor at six months and ask for one of three things: 1) an affirmative response at the six-month point the employee’s performance and on-the-job conduct support a positive decision on retention, 2) a response that the supervisor is undecided at this point regarding retention (which will trigger contact by the assigned HR/ER Specialist), and 3) a response that the supervisor recommends ending the employee’s employment (which will trigger contact by the assigned HR/ER Specialist.)  Then, of course, someone in HR needs to follow up on these reports to make sure that they are returned and, if not, that triggers contact by the assigned HR/ER Specialist.

A couple of other things are needed.  I would suggest repeating the notices at 9 months.  Top management needs to convey the message that the selection process isn’t the end – that until a final decision has been made to terminate or retain, the manager is still responsible for the decision about this use of precious resources.  Also, the HR staff needs to look at this use of their time as a good investment – not a burden.  If there is a bad match, we have one limited period to identify that and separate the employee.  If we wait till later, it’s a lot more work with more risk.  Who wouldn’t say that it is a reasonable use of one’s time to take action the easy way?

As always, comments are welcome! Haga@FELTG.com