California Judge Orders Rehiring of Probationary Employees

Last month, there were reports that the Trump administration had fired an unknown number of probationary federal employees. Immediately there were claims from a lawyer opposing the firings that these actions were illegal.

Firing employees en masse with the same claim of poor performance is illegal, said Jim Eisenmann, a partner at the Alden Law Group, a law firm specializing in litigation by federal employees. It violates federal law covering career civil service employees, he said.

“It can’t be true,” Eisenmann said. “They’re clearly not articulating this on an individual basis, which is what makes it so suspect.”

OPM responded that probationary hires don’t have the same protections as regular government employees.

OPM also offered a template notice agencies could send to fired workers. It read in part: “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.” Federal law gives agencies wide latitude to fire probationary workers so long as they provide written notice “as to why he is being separated [and] the agency’s conclusions as to the inadequacies of his performance or conduct.”

All of this was immediately headed to court and today a California federal judged ordered that at least six agencies must rehire those fired probationary employees.

A federal judge in California on Thursday ordered that the departments of Veterans Affairs, Defense, Energy, Interior, Agriculture and Treasury reinstate thousands probationary employees who were terminated last month.

The departments must “offer reinstatement to any and all probationary employees terminated on or about February 13,” U.S. District Judge William Alsup wrote in the order, referring to the date when the Office of Personnel Management held a call with department and agency heads and directed them to fire probationary employees…

“It is sad, a sad day when our government would fire some good employee, and say it was based on performance, when they know good and well, that’s a lie,” Alsup said.  

The judge added that there is nothing wrong with reductions in force “if it’s done correctly under the law.”

Judge Alsup thought this was an effort to get around the usual RIF process.

“The reason that OPM wanted to put this based on performance was at least in part in my judgment a gimmick to avoid the Reductions in Force Act,” the judge said. “Because the law always allows you to fire somebody for performance.”

When this happened last month, I pointed out that providing a form letter and treating what are supposed to be individual decisions about performance collectively was reminiscent of Obama’s formulation of DACA. DACA applied prosecutorial discretion to an entire group of hundreds of thousands of people rather than to an individual case. And it sounds like that’s the aspect of this case that didn’t fly with this judge.

The judge was also irritated that the head of OPM refused to testify.

He had ordered acting OPM director Charles Ezell to testify Thursday, where he would likely face tough questions from attorneys representing labor unions and others that are challenging his agency’s role in the firings.

But the Justice Department refused to make him available and instead withdrew a declaration Ezell submitted last month that had served as the government’s only evidence in the case.

“You’re afraid to do so because you know cross-examination will reveal the truth,” Alsup told DOJ attorney Kelsey Helland. “I tend to doubt that you’re telling me the truth.”…

The declaration from Ezell said that OPM did not “direct” other agencies to terminate probationary employees — the central issue in the case brought by labor unions and others.

I’m sorry but this story is a stretch. Multiple agencies made independent decisions to fire the same set of probationary employees…over a weekend? No one is going to believe that. 

So it looks like this has been reversed and now the administration will have to find another way to pursue a reduction in force at these agencies. They may get a chance in about 36 hours if Senate Democrats follow through on their plan to shut down the government. 

As Ed pointed out this morning, a shutdown puts OMB in charge of which government workers are essential and which are not. This could be an opportunity to have a new reduction in force. We’ll only have to wait until tomorrow to see if Schumer goes through with it.