Labor & Employment Law Daily Wrap Up, OPM NEWS—Guidance issued on executive order changing parameters of federal employee probationary periods, (Apr 30, 2025)

By Brandi O. Brown. J.D.

It provides initial guidance to agencies on the EO, new Civil Service Rule 11, and probationary and trial periods in the Federal service.

This week the Acting Director of the Office of Personnel Management issued “Initial Guidance” on Executive Order 14284, titled “Strengthening Probational Periods in the Federal Service.” The order gave the OPM director 30 days to prepare and publish a rule. In the memo, issued on April 28, the Acting Director has provided “initial guidance to agencies on the EO, new Civil Service Rule 11, and probationary and trial periods in the Federal service.”

Repeal of current regulations. The memo explains that the EO repeals Civil Service Rule 2.4, thus nullifying the provisions governing probationary periods in the competitive service. Section 2.4 read: “Persons selected from registers of eligibles for career or career-conditional appointment and employees promoted, transferred, or otherwise assigned, for the first time, to supervisory or managerial positions shall be required to serve a probationary period under terms and conditions prescribed by the Office.”

It also “immediately renders 5 CFR 315, Subpart H inoperative,” the Acting Director notes. “There is no longer a requirement that the employing agency provide a terminated probationer with ‘the agency’s conclusions as to the inadequacies of his performance or conduct,’” as had previously been required by 5 CFR § 315.804(a). Additionally, the requirements for notifying competitive service probationary employees of the reasons for a proposed adverse action when it is based on pre-appointment conditions set forth in 5 CFR § 315.805 were “rendered inoperative” by the EO.

Revised standards. Under the EO, the memo explains, for employees whose probationary or trial period ends on July 23, 2025, or later, for their appointment to be finalized and for them to remain employed beyond the probationary or trial period, the agency head or designee has to affirmatively certify, within 30 days prior to the end of the probationary or trial period, that such individual’s continued employment would benefit the Federal service. In an appendix, the Acting Director has provided a “sample template for making this certification.”

The memo also provides the considerations to be used by the agency head or designee “in his or her sole and exclusive discretion,” including performance and/or conduct; the needs and interests of the agency; whether the employee’s continued employment would advance organizational goals of the agency or the Government; and whether the employee’s continued employment would advance the efficiency of the Federal service. If an agency fails to make this certification due to administrative error, the head of an agency may petition the Director of OPM within 30 days of the termination to reinstate the employee.

If the agency decides not to certify, it is to notify the employee in writing of the termination’s effective date and a copy of that letter goes into the employee’s official personnel file. The memo also provides a sample template for this notice.

The memo also sets forth actions for agencies to take regarding employees whose probationary or trial period will end on July 23, 2025, or later, including identifying them, designating who will evaluate them, having the designee meet with each of the identified employees, having the designee make the determination about finalization or termination in the 30-day-period, and certifying in writing if an individual’s continued employment meets the newly set criteria. Agencies also must submit initial reports by May 16, 2025.

Other possible regulatory changes. The memo also provides an appendix identifying “Q&As” on the new requirements. Among the questions and answers provided, OPM confirms that it “will issue regulations to rescind subpart H of part 315, Code of Federal Regulations within 30 days of the effective date of the EO. However, the provisions of the new EO are self-executing. OPM may issue additional regulations setting forth appeal rights and procedures for terminated probationary/trial period employees.”

How to demonstrate continued employment is in the public interest? This question states that, as to the factors enumerated in new Civil Service Rule 11.5(d), “[e]mployees serving a probationary or trial period should take every opportunity to demonstrate their fitness and qualifications through sustained high performance, good conduct, and meaningful contribution to their agency’s mission. However, the ultimate determination as to whether the probationary or trial period employee’s appointment to the Federal service will be finalized rests with the discretion of the agency, as Congress intended when it passed the CSRA.”

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