Federal employees who are serving a probationary or trial period often have fewer job protections than permanent federal employees. However, probationary status does not mean an employee has no rights at all. In certain situations, probationary employees may have legal protections, procedural rights, or alternative avenues to challenge an adverse action.
This article explains what probationary federal employees need to know about their rights, limitations, and potential legal options if they are facing termination or other adverse action.
What Is a Federal Probationary Period?
A probationary period is a trial phase of federal employment during which an agency evaluates an employee’s performance, conduct, and suitability for continued employment.
-
Competitive service employees generally serve a one-year probationary period
-
Excepted service employees may serve a trial period, which can be one or two years, depending on the appointment authority
-
Time spent as a contractor or intern typically does not count toward probation
Also, keep in mind that due to new Office of Personnel Management (OPM) regulations in June of 2025, probationary employees cannot move to full tenure status without affirmative approval by their agency. During the probationary period, agencies have broader discretion to remove employees than they do once probation is completed. However, some federal supervisors abuse this process and attempt to terminate employees not on actual merit, but personality dislike or illegal motives.
Can a Federal Agency Terminate a Probationary Employee?
Yes. In most cases, a federal agency may terminate a probationary employee with limited procedural requirements and without providing full appeal rights to the Merit Systems Protection Board (MSPB) or OPM. The probationary appeals process is currently pending transition from the MSPB to OPM based on recent OPM proposed rules.
Unlike permanent employees, probationary employees generally:
-
Are not entitled to advance notice of removal
-
Do not receive a formal opportunity to respond
-
Do not have full MSPB / OPM appeal rights
However, this discretion is not unlimited, and agencies must still follow applicable laws and regulations.
Do Probationary Employees Have Appeal Rights?
In general, probationary employees do not have MSPB or OPM appeal rights. However, there are important exceptions. Many of these rights and appeal procedures are being revised and may be undertaken by the OPM in the near future.
Limited MSPB or OPM Appeal Rights May Exist If:
-
The termination is based on pre-appointment reasons, such as alleged falsification of application materials or conduct that occurred before federal service
-
The termination is based on marital status or partisan political affiliation
In these narrow circumstances, a probationary employee might be able to file an MSPB appeal or OPM appeal (when the process is finalized) challenging whether the agency followed the law. Previously, these types of appeals were solely handled by the MSPB.
Other Legal Protections for Probationary Employees
Even when MSPB appeal rights are limited, probationary employees may still have other legal avenues available which may provide a better opportunity to litigate a wrongful probationary termination.
Equal Employment Opportunity (EEO) Rights
Probationary employees are protected from discrimination based on:
-
Race
-
Color
-
Religion
-
Sex (including pregnancy and gender identity)
-
National origin
-
Age (40 and over)
-
Disability
-
Genetic information
-
Retaliation for prior EEO activity
A probationary employee who believes their termination was discriminatory may pursue an EEO complaint, regardless of probationary status. Any new changes do not effect the EEO process.
Whistleblower Protections
Federal employees — including probationary employees — are protected from retaliation for making protected disclosures under the Whistleblower Protection Act.
Employees who believe they were terminated for whistleblowing may seek relief through the U.S. Office of Special Counsel (OSC) and ultimately the MSPB.
USERRA Protections
Federal employees in a probationary status are also protected against military discrimination. The Uniformed Services Employment and Reemployment Rights Act (USERRA) permit these individuals to appeal probationary terminations based on military discrimination. If the military discrimination claim arises under USERRA, the MSPB has jurisdiction regardless of probationary status.
Common Agency Mistakes During Probationary Terminations
Agencies sometimes make errors that affect a probationary employee’s rights, including:
-
Terminating an employee whose probation has already ended
-
Improperly classifying the employee’s appointment status
-
Failing to follow required procedures for pre-appointment removals
-
Terminating an employee based on whistleblowing
- Terminating an employee based on illegal discrimination
These issues can significantly affect whether appeal rights exist.
Examples
-
Example 1: An employee removed for alleged resume falsification may be entitled to appeal to either the MSPB or OPM.
-
Example 2: An employee terminated shortly after filing an EEO complaint may have a retaliation claim.
- Example 3: An employee discloses fraud and is terminated in their probationary period as retaliation.
Each case depends on its specific facts and timing.
Changes Likely Ahead in 2026 and Beyond
As noted, new changes have been proposed by the Government in regards to attempt to limit or change probationary rights. These new policies started in 2025 and have been proposed for 2026. Expect additional changes to the probationary appeals process in the future. It is expected that OPM will take on more of the probationary period appeals in the future. These changes do not affect discrimination or whistleblower appeals involving probationary employees.
Frequently Asked Questions
How long is a federal probationary period?
Most competitive service employees serve a one-year probationary period, but some excepted service positions require a longer trial period. Additionally, an agency must affirmatively approve the transition from probationary to tenured employee.
Can a probationary employee appeal a termination to the MSPB or OPM?
Usually no — but limited MSPB or OPM appeals may be available in specific circumstances, and other legal claims may still exist like EEO or Whistleblower complaints.
Does probationary status mean I have no rights?
No. While rights are limited, probationary employees are still protected from discrimination, retaliation, and certain prohibited personnel practices.
Why Legal Guidance Matters
Because probationary rights are limited, currently changing and highly technical, timing and classification issues are critical. Employees may lose potential claims simply by missing deadlines or misunderstanding their status.
An experienced federal employment attorney can help determine whether:
- OPM appeals exist if MSPB appeals do not
-
An EEO or OSC claim is appropriate
-
The agency followed required procedures
Conclusion
Federal probationary employees have fewer protections than permanent employees, but they are not without rights. Understanding the scope and limits of those rights is essential when facing termination or other adverse actions.
If you believe your probationary termination violated federal law or merit system principles, seeking timely legal advice may help protect your interests.
