Watchdog declines to pursue cases involving fired probationary federal workers

The Office of the Special Counsel (OSC) told fired probationary employees it would no longer pursue complaints they were wrongfully terminated, a reversal that comes after the Trump administration fired the head of the agency.

In an email to those who had filed claims with the agency, the OSC said it “plans to take no further action” on some 2,000 complaints. 

The Trump administration in February ordered the firing of probationary workers, those hired in the last year or two, depending on their agency.

While probationary workers are easier to fire than other civil servants, they still have workplace protections and must be fired for cause. 

The Trump administration told workers they were being fired for performance reasons, even as it embarked on sweeping firings impacting more than 20,000 workers.

“Even if OSC could prove that the decision to terminate your probationary employment was not based on an individualized assessment of your performance, OSC is unable to pursue a claim that it was unlawful,” the agency wrote in an email reviewed by The Hill.

“This is because your termination, in the context of the government-wide effort to reduce the federal service through probationary terminations, was more likely effected in accordance with the new administration’s priorities than a decision personal to you.” 

The government does have procedures in place for wide scale government layoffs that don’t require employees be fired for performance reasons. Known as a reduction in force (RIF), that process has its own guidelines, including giving employees advanced notice. The probationary workers did not receive any such notice.

The Trump administration has since ordered departments to submit plans for undertaking a RIF.

A probationary worker who spoke with The Hill said they had actually filed two complaints, one over “falsification” of the termination document which said the firings were performance based and a second over the lack of notice for a reduction in force.

The Office of the Special Counsel is responsible for investigating illegal actions taken against employees, including cases of whistleblower reprisal and allegations that an employee has been the target of “prohibited personnel practices.” 

The shift in stance comes after former Special Counsel Hampton Dellinger effectively lost a bid to retain his post.

Dellinger was fired by the Trump administration in early February but sued and was reinstated to his post for several weeks amid the litigation.

In February, he determined the firing of the probationary employees likely violated laws requiring that employees be removed for cause

“These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance,” Dellinger said in a statement.

“If agencies wish to terminate probationary employees not for performance or conduct, but as part of a general restructuring or downsizing, they must initiate a reduction in force (RIF) and follow the relevant procedures for that process,” he added in a filing at the Merit Systems Protection Board (MSPB). 

The MSPB ultimately sided with Delligner, temporarily returning six fired probationary employees back to their roles while ordering the return of another 6,000 fired from the U.S. Department of Agriculture.

Similar challenges brought by fired probationary employees in court have scored some victories. Lower courts initially required some agencies to return their employees to their posts, but the Supreme Court cleared the way for the Trump administration to fire some workers.

Dellinger ultimately declined to continue his court fight after an appeals court barred him from continuing to serve in his role as he challenged his firing.

“It killed me because I was on the verge, you know, this hasn’t been made public, but I’m happy to tell you and your audience, I would have gone in last Thursday or Friday on behalf of all 200,000 probationary employees who I think have been wrongfully fired,” Dellinger told Mediaite founder Dan Abrams.

“And so I’m always going to be frustrated that I didn’t get to, to really go to bat for a couple hundred thousand employees,” he said.