Should Your Agency use Progressive Discipline or Performance Demonstration Periods with Probationers?

By Deborah Hopkins, July 21, 2021

The question in this article’s title has come up a few times over the last several weeks, particularly during our flagship UnCivil Servant training classes.

We’ll give you the short answer, and then the longer answer.

Short answer: No.

Explanation: According to OPM, “The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.” The same principle is true when it comes to discipline. The agency doesn’t have to justify its penalty in removing a probationer, so even minor misconduct that wouldn’t justify removal of a career employee can warrant a probationer’s removal.

As soon as there’s a performance or conduct issue, the law allows to the agency to remove the probationer, even if the offense is minor.

Here is why removing a probationer without a Demonstration Period or progressive discipline makes sense:

• The proof necessary to remove a probationer is very low.
• The action can be taken and effected in one day.
• If the probationer is ALREADY having performance or conduct issues, just imagine how they might behave once their due process rights attach.
• It expedites the process to get the position posted again.

Now, read the headline again and then check out the next piece of discussion.

Longer answer: Maybe, probably not, but if you do then you’d better realize WHY you’re doing it.

Explanation: If a probationary employee is already having performance or conduct issues, the supervisor needs to think very hard about whether the additional time and effort spent to coach, train, work closely with, mentor, and help the probationer along is worthwhile. Because once that probationer hits their one-year mark (in most jobs, anyway), they become a fully vested career employee where civil service protections attach. It’s still possible for the agency to take an action against a career employee, as FELTG readers well know, but the simplicity of a probationer’s removal cannot be overstated.

The below situations might be reasons why a supervisor decides to keep a probationer around:

• The position is difficult to recruit for or the job is located in a remote place.
• The benefit to the government of working with the employee outweighs the drawback to the supervisor.
• The employee has a unique skillset that it is worth the extra oversight to keep that person employed by the agency.
• The employee’s attitude shows willingness to learn and improve.
• The misconduct cannot be forgiven, but the supervisor doesn’t think it requires the probationer’s removal.

Surely, there are multiple other reasons why supervisors might keep probationers around. And let me be clear: I am not advocating pro- or con- removal, one way or the other. I just think it is important to point out that probationers have very few rights to their jobs while in the probationary period. If an agency is having a problem with a probationer, that supervisor should think very hard about making life easier and handling the problem now. However, if the supervisor thinks there’s hope for the employee, I can absolutely understand and support that position as well. Regardless of your stance on this issue, best of luck with all your probationary employees.  Hopkins@FELTG.com