Under a newly proposed rule, the Office of Personnel Management (OPM) would take over authority to decide appeals by probationary federal employees who allege unfair termination, stripping that power from an independent hiring agency.
The proposal recently posted to the Federal Register would replace the Merit Systems Protection Board (MSPB) with OPM’s Merit System Accountability and Compliance (MSAC) office as the adjudicative agency for all appeals filed by probationary employees.
OPM would not consider any appeals related to discrimination covered by the Equal Employment Opportunity Commission (EEOC). OPM’s role would be limited to appeals covering discrimination based on partisan political reasons or marital status or “an agency’s failure to follow procedures for terminations based upon preappointment reasons.”
The EEOC prohibits discrimination based on race, color, religion, sex, national origin, age, and disability, and gives workers the right to file complaints and seek legal remedies when they face unfair treatment or retaliation at work.
While probationary employees – federal employees within their first one or two years of employment – receive less protections than other classes of federal workers, they may only be terminated for performance or conduct concerns.
However, that standard was put into question after President Donald Trump signed an executive order last year to dramatically reduce the federal workforce, impacting many probationary employees.
MSPB, the executive branch’s independent, quasi-judicial agency that protects against prohibited personnel and partisan political practices, reviewed thousands of appeals following Trump’s directive, but faced its own series of cuts after Trump removed the board’s chair and another member of its three-person panel, leaving it without a quorum.
That lack of a quorum was cited by OPM as a reason for its takeover of probationary appeals. OPM said MSAC is “distinct from MSPB” because “it has the infrastructure in place to adjudicate probationer appeals effectively without being subject to restrictions arising from the lack of a quorum.”
OPM also pointed to historically slow Senate confirmations of MSPB board members, noting that those delays have caused previous backlogs. Though, in October 2024, those backlogs were quickly and nearly entirely addressed by MSPB.
MSPB has reviewed federal workers’ appeals since it was established in 1979.
OPM said its proposed rule builds on another order signed by Trump last April, which made it easier to fire probationary employees by eliminating automatic conversions to full-time roles after the probationary period, and instead requiring an assessment to determine employees’ fitness.
The appeals process undertaken by MSAC would be streamlined, according to OPM, and rely on “written record without the need of extensive discovery.” However, OPM said it would investigate the termination if additional information is needed.
Appellants will also not have the right to a hearing but may receive one when necessary and “where it will aid in the efficient resolution of an appeal,” according to OPM. Probationary employees will also be able to seek a reconsideration of MSAC’s decision.