WASHINGTON, D.C. (FEDweek) — OPM has proposed rules that would give it, rather than the MSPB, the authority to decide challenges by probationary employees to terminations, in the latest Trump administration move to limit job protections of those employees.
Under a proposal in the December 30 Federal Register, probationary employees could file challenges only on grounds of discrimination based on partisan political reasons or marital status; or that the agency failed to follow procedures for terminations based on pre-appointment reasons. (Employees alleging violations of laws overseen by the EEOC still would be able to appeal through that process.)
OPM would make its decisions “based on the written record without the need of extensive discovery” although it could conduct a further inquiry at its discretion. Employees further would not be entitled to a hearing process of the sort available through the MSPB, although OPM similarly could conduct one at its discretion.
If OPM upholds an employee’s appeal, it will “order relief including correction of the personnel action and any back pay, interest, and reasonable attorney fees,” the notice says. Employees who lose such challenges could ask for reconsideration, but again only within OPM.
The notice follows rules that were proposed and then quickly finalized in mid-2025 stating that an agency must affirmatively decide to retain an employee at the end of that period, and eliminating a prior requirement that terminated employees be notified of their deficiencies. That notice requirement was a focus of lawsuits following the wide scale firing of probationary employees earlier in the year.
Several judges issued rulings requiring employees be reinstated on grounds that the boilerplate language that agencies used—which did not address individual performance—did not meet that requirement. Following those rulings, President Trump issued an executive order that laid the groundwork for the changes already finalized and those newly proposed.
There are still a few steps needed to finalize the rule, starting with a notice and comment period. “Then OPM will review the comments received before then finalizing the rule in the federal regulations with the President’s approval,” according to Tully Rinckey PLLC Managing Partner Michael Fallings. For the time being, probationary employees should “retain their performance reviews, obtain their personnel record, document correspondence with their supervisors that indicate good performance. This is important since these employees may not have a chance of a hearing or discovery in an appeal.”
