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Written by: Federal Practice Group
Written by: Federal Practice Group

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4 keys to managing probationary employees during a pandemic

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

BEST PRACTICE: Even with the challenges of COVID-19, agencies should not waste the opportunity to fully utilize the probationary period to ensure employees can successfully perform the essential functions of the position, employment law expert Robert Erbe toldcyberFEDS® in an exclusive interview.

Managers should be able to assess performance and take appropriate action if employees are not performing adequately before the probationary period expires even if they are teleworking, he said.

However, the pandemic has raised some concerns about properly evaluating employees who have never teleworked before or rarely teleworked and for those with caregiving responsibilities. Office of Personnel Management's latest data shows that only 22 percent of employees participated in a telework program at the end of fiscal year 2018. Of those who participated, 45 percent engaged in situational telework over the course of the fiscal year.

Federal Practice Group partner Joanna Friedman told cyberFEDS® that even during the pandemic, "if a position is deemed telework eligible, then this means that the employee in the position should be able to perform the essential duties of a position." So, for employees who regularly teleworked or whose positions easily allow telework, "it is not likely that there will be situations where a probationary employee who is teleworking is unable to perform their duties."

For other employees, Erbe said, managers still can evaluate performance based on the duties performed because they generally do not have to evaluate employee performance on all requirements of the position. If the pandemic only allows performing 70 percent of the job while on mandatory telework, for example, managers can take appropriate action up to termination if the employee's performance is not successful, he added.

However, if managers have questions about terminating an employee, Erbe said, agencies can offer a last chance agreement as an alternative.

Erbe and Friedman discussed the following best practices to help agencies utilize the probationary periods successfully.

  1. Provide employees with resources and clear expectations.

Managers should always ensure employees have what they need to fulfill the job's demands, Friedman said. They also should:

  • Give employees clear guidance on performance expectations and duties.
    • Find creative ways to provide any needed training that can help the employee perform job duties.
    • Regularly check in with the employee and provide feedback.
    • Assign the employee a mentor.
  1. Provide the required notice to managers about when probationary periods end.

To implement certain parts of President Trump's Executive Order 13839, the Office of Personnel Management released proposed regulatory changes to ensure agencies use probationary periods "as the final step in the hiring process of new employees."

Agencies should use probationary periods to the greatest extent possible to assess how well they are performing and deal with poor performance and misconduct "promptly," OPM explained.

If finalized, OPM's proposed amendments would:

  • Require providing two notifications to supervisors that an employee's probationary period is ending -- the first at least 90 days before and the second 30 days before the probationary period expires.
    • Advise supervisors to make an affirmative decision regarding the employee's fitness for continued employment or otherwise take appropriate action before the end of the probationary period.

Although these proposed rules are not final, Erbe said, agencies should consider providing these notices to encourage managers to use the probationary period to promote the efficiency of the service.

OPM encouraged using existing automated tools to facilitate timely notifications, although agencies would have discretion to determine how to communicate this probationary period notice to supervisors.

  1. Consider a last chance agreement if termination seems unfair due to the pandemic.

"An agency cannot unilaterally extend an employee's probationary period because laws dictate the timeframe of the period," Friedman said.

However, Erbe said, agencies have another option if they can get the employee to sign a last chance agreement, which is a "pretty good mechanism" that gives managers additional time to evaluate performance and helps agencies avoid litigation.

Before the pandemic, the general advice for managers was to terminate employees if they were unsure whether the employee could perform successfully, Erbe said.

However, managers may now be hesitant to terminate employees for a variety of reasons, including the uncertain job market or not being able to fully evaluate the employee because some functions could not be performed from home during mandatory telework, he said.

Managers also may empathize with employees who are struggling because they are now effectively working while homeschooling or performing other responsibilities, he added.

If so, managers can offer a choice between termination and accepting a last chance agreement that essentially extends the probationary period by contract and waives any future Merit System Protection Board appeal rights, he explained.

Although the probationary period is set by law, the MSPB generally will uphold a well- crafted settlement agreement, he noted.

The language should clearly state that breaching the agreement or not fulfilling performance requirements would trigger termination and outline the length of the extension to the probationary period, which "would depend on the nature of the job and might depend on the pandemic right now" and when employees are expected to return to the workplace, he said.

Managers must also understand that they cannot simply claim the settlement agreement was breached for minor offenses, such as terminating an employee for showing up five minutes late, he said, which could lead the MSPB to find the agency acted in bad faith and reinstate the employee.

Friedman warned, however, that when someone is terminated for not satisfying a last chance agreement, "it's difficult to know" whether the MSPB "will be inclined to agree" that an extension of the probationary period is lawful. If the MSPB rejects the extension of the probationary period, the agency would have to reprocess the termination using full notice and reply procedures applicable to other employees. Also, generally last chance agreements are typically offered in conduct, not performance, cases because non-probationary employees with performance difficulties usually receive performance improvement plans.

  1. Terminate employees whose performance is unsuccessful.

Agencies will be unlikely to be "inclined to offer a last chance agreement if they can simply fire a probationary employee without cause," Friedman said.

Upon termination, Erbe said, "the employee really has no rights to appeal because the termination takes place during probationary period."

"Even if the manager changes the position's duties, probationary employees have no recourse to challenge probationary terminations," unless an exception applies to give the MSPB jurisdiction, he explained.

The MSPB would not have jurisdiction over probationary terminations, unless the employee claimed the termination was a form of marital status or partisan political discrimination, but "both of those are very rare," he added.

"Managers should evaluate employees as fairly as possible, as this is the last step in the hiring process, meaning that it's almost an extension of the interview." But employees have the burden of showing managers that their probationary status should be converted tenured service, he noted.

For managers, the decision should rest on whether retaining or terminating the employee would promote the efficiency of the service, he explained.

If their performance does not sufficiently show the manager an ability to perform successfully, then the manager should terminate them, he added. "Once the person becomes an employee, chances of getting fired from a federal job are miniscule."

June 5, 2020

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