Navigating the probationary period after van Wersch and McCormick

Navigating the probationary period after van Wersch and McCormick

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qThe probationary or trial period in the Federal civilian service is the final stage of the assessment process under which an agency may observe the knowledge, abilities and skills of a candidate for employment and make a final selection decision in light of those observations. If used correctly, this 'job tryout' can be one of the most reliable and valid assessment tools available to Federal agencies when an individual is either employed in his or her first position or moves to a new and different type of position. Proper use of this tool helps promote the merit system principle that selection should be determined solely on the basis of relative ability, knowledge, and skills. An integral part of the probationary or trial period has been the ability of agencies to swiftly terminate those probationers who have not demonstrated their fitness for continued employment. Such terminations typically have not given rise to the same level of uncertainty and additional administrative costs that accompany the removals of employees who are entitled to full procedural and appeal rights. Thus, much like applicants for employment who are not selected for a position, terminated probationers have not, until recently, been considered to be entitled to certain procedural rights before a termination is effected, as well as the right to challenge the merits of their termination before the United States Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit is the Board's reviewing court for 'non-mixed' cases, i.e., those cases in which there is no allegation of discrimination raised in connection with an appealable adverse action. This report addresses two decisions issued by the Federal Circuit that have changed the way in which the Board has interpreted a key law that governs entitlement to procedural and appeal rights if an individual in the Federal civilian service is subjected to an adverse action such as a removal. These cases, Van Wersch v. Department of Health a Human Services and McCormick v. Department of the Air Force, provide that some individuals who have traditionally been thought of as probationers with limited rights may actually be entitled to the same rights afforded to employees with finalized appointments. Van Wersch and McCormick, therefore, provide rights to additional categories of persons not previously considered to have had those rights. Given this change in the interpretation of the law, it is important that all stakeholders understand the Federal Circuit's decisions and some of the issues that may arise in light of those decisions. Agencies must now proceed with caution when terminating probationary employees because the cost of violating a probationer's pre-termination procedural rights can be high. Agencies may be ordered, on appeal of the action to the Board or the Federal Circuit, to treat a probationer as an employee with a finalized appointment and return the individual to his or her position with back pay and benefits.q--P. i-ii.from the federal Circuita#39;s decision The Federal Circuita#39;s interpretation of 5 U.S.C. As 751 1(a)(1) has created a number of ... of appeal rights for new hires, and the impact of the courta#39;s decisions on merit-based hiring in the Federal civil service.

Title:Navigating the probationary period after van Wersch and McCormick
Author:United States. Merit Systems Protection Board
Publisher: - 2006


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