Under orders from the White House, many federal agencies are taking action in 2025 to terminate probationary employees. Probationary employees have limited legal recourse to challenge termination actions. This guide provides legal options that a probationary employee can consider in challenging a termination action.

Appeal Regarding Improper Determination that Worker is Still in Probationary Status

If an employee is terminated as a supposedly probationary employee, but the worker has in fact already satisfied the requirements to complete the probationary period, the worker can appeal the termination action to the Merit Systems Protection Board (MSPB). This may occur, for example, if an agency miscalculates the duration of a probationary period or if an employee moved from one federal agency to another federal agency, and the new agency mistakenly failed to account for the employee’s previous federal service. If you believe that you have been improperly identified as a probationary employee, contact the lawyers of KPWW for an initial consultation, and we can review information to help determine your correct status. Please note that an MSPB appeal should be filed within 30 days of the effective date of the termination action.

Grievance Action

You may have the ability to file a grievance regarding a termination action, as the action may not comply with the terms of a collective bargaining agreement. We recommend that you consult with your union to explore your rights to pursue a grievance action and applicable deadlines.

EEO Discrimination Complaint

You have a right to be free from discrimination based on your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information or retaliation for protected EEO activity. If you believe that you were terminated due to discrimination, you may pursue an EEO discrimination complaint. You must initiate your EEO complaint within 45 days of the termination action by contacting your federal agency’s EEO or Civil Rights Office.

Whistleblower Retaliation Complaint

If you believe that you were terminated as a result of your prior whistleblowing activity, you can initiate a whistleblower retaliation complaint with the Office of Special Counsel (OSC). OSC can either pursue legal action on your behalf or provide you with the right to file an action before the Merit Systems Protection Board (MSPB).

Complaint of Being Targeted Due to Partisan Political Affiliation

If you believe that you were terminated due to your partisan political affiliation, you can file an appeal with the Merit Systems Protection Board (MSPB). You should file an MSPB appeal within 30 days of the effective date of the termination action.

Complaint of Being Targeted Due to Marital Status

If you believe that you were terminated in relation to your marital status (either because you were married or because you were not married), you can file an appeal with the Merit Systems Protection Board (MSPB). You should file an MSPB appeal within 30 days of the effective date of the termination action.

Appeal of Termination Based on Pre-Employment Activity

If you were terminated due to conditions arising pre-employment with the federal agency, the agency is required to provide you with due process to respond to the allegations before taking action. If you believe that your termination resulted from allegations relating to pre-employment conditions and you were not provided with an opportunity to rebut those allegations, you may file an appeal with the Merit Systems Protection Board (MSPB). You should file the MSPB appeal within 30 days of the effective date of the termination action.

Please note that the deadlines for these claims are relatively fast, and the deadlines apply whether or not you are represented by a lawyer. If you are running up against a deadline and you are not represented by a lawyer, you should consider the option of filing you claim without a lawyer. You can always add a lawyer to your case at a later time. Failure to satisfy applicable deadlines may result in dismissal of your claims.

KPWW filed a lawsuit on February 11, 2025 against the President on behalf of Cathy Harris. The White House issued a notice to terminate Ms. Harris from her position as a Member of the U.S. Merit Systems Protection Board (MSPB). Ms. Harris was over three years away from the end of her official term, and federal law provides that she can only be terminated for cause.

For more information about the lawsuit, please click here.

On January 28, 2025, OPM issued an email to federal civil service employees offering an opportunity to elect a Deferred Resignation. Under the terms of the email announcement, federal employees have until February 6, 2025 to accept a Deferred Resignation. The email announcement states that if a federal employee accepts a Deferred Resignation, the employee may be placed on administrative leave, and the resignation will take effect on September 30, 2025.

On February 3, 2025, federal agencies sent out a written agreement to federal civil service employees regarding the Deferred Resignation offer. The agencies indicated that this agreement would “formalize” the arrangement between the government and any employee who elected to accept the Deferred Resignation offer.

The decision of federal employees about whether to accept a Deferred Resignation is a very personal matter. However, there are some considerations and risks that we recommend you take into account in deciding whether to accept a Deferred Resignation:

1. The terms offered in the Deferred Resignation offer are not necessarily binding on the federal government. That is, if a federal agency does not honor its “promise” from the email announcement (for example, if the government stops paying an employee who accepted the Deferred Resignation offer), it is uncertain whether there is a way to enforce the terms in a court of law. The draft agreement states that the Deferred Resignation agreement could be rescinded by the agency.
2. The terms of the Deferred Resignation offer do not state that a federal employee who accepted a Deferred Resignation will not be subject to termination or a Reduction in Force (RIF or layoff) prior to September 30, 2025. The terms of the offer provide no explicit protection from a federal employee’s position being subject to elimination during the Deferred Resignation time period.
3. The draft agreement regarding the Deferred Resignation offer requires the employee to waive all claims that might be brought against the government or “based on, arising from, or related to the employee’s employment at the agency or the deferred resignation offer.” 
4. The Deferred Resignation offer was not approved by Congress. The money that would presumably be used to pay employees who accept a Deferred Resignation would come from funds that were appropriated by Congress for other federal agency activities. This may trigger legal disputes or payment complications associated with the Deferred Resignation offer.
5. We have heard from some federal employees that they feel that they will be terminated or laid off anyway, so they feel pressured to accept the Deferred Resignation. While we understand the threats posed by the Trump Administration to the federal civil service and federal employees, please understand that there have not yet been any widespread actions to lay off federal employees. Those efforts may come, and the efforts may withstand the legal challenges being filed by our law firm and others. But we encourage you to be considerate and careful in thinking through any significant decision, such as whether to resign from your federal position.
6. Accepting the Deferred Resignation may impact your ability to receive Unemployment benefits at the end of your employment. Decisions on eligibility for Unemployment benefits varies from state to state. In many circumstances, a resignation may disqualify an individual from receiving Unemployment benefits. We recommend reviewing the state Unemployment benefits eligibility rules and Unemployment benefit limits as part of a consideration of the Deferred Resignation.
7. An agreement to accept the Deferred Resignation may be binding on a federal employee. If an employee accepts the Deferred Resignation and then seeks to rescind the resignation, it would be up to the employee’s agency (possibly with involvement from OPM) to accept or reject the attempt to rescind the resignation. Federal agencies may not agree to allow an employee to rescind a resignation once the resignation has been submitted.

The decision about whether to accept or reject the offer of Deferred Resignation is a serious and personal matter. Your decision should be based on what you feel is best for you, your life, and your career. We hope the general considerations and possible risks noted above can help you think through your options and your personal decision.

For more information about your legal rights as a federal employee, please contact the attorneys of Kator, Parks, Weiser & Wright.  If you accept the Deferred Resignation and, in the future, face issues with the Deferred Resignation, please contact our firm to discuss your specific concerns.