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OPM’s Proposed Rule Could Strip Probationary Employees of MSPB Rights

federal employment mindfulness at work mspb appeals opm regulations probationary employees Jan 05, 2026

Federal employees often hear that probation is “temporary vulnerability.” What is now on the table would turn that vulnerability into something far more permanent—and far more dangerous for the integrity of the civil service.

OPM has issued a proposed regulation titled “Streamlining Probationary and Trial Period Appeals.” Behind the benign phrasing is a fundamental shift: removing the small category of probationary termination appeals that currently go to the Merit Systems Protection Board (MSPB) and placing them instead inside OPM itself—the same agency that writes and enforces the rules.

That consolidation alone should give pause. A system designed to protect merit principles depends on neutral adjudication. When the rule-maker also becomes the decision-maker, trust erodes quickly.

What Appeals Would Still Exist—And What Would Disappear

Even today, probationary employees have very limited appeal rights. This proposal narrows them further. Under the rule, appeals would be confined to three grounds only:

Termination based on partisan political reasons
Termination based on marital status
Failure to follow required procedures when the termination is based on conduct that occurred before appointment

That is the full universe. Claims involving retaliation, whistleblowing, poor supervision, or pretextual performance concerns would largely remain unreviewable.

More troubling, discrimination claims—race, sex, disability, age—would not be allowed to attach to this OPM appeal the way they sometimes can at MSPB. Instead of one forum, employees would face fragmented processes at the most destabilizing moment of their careers.

A Paper-Only Process With No Guaranteed Discovery

OPM’s proposal openly contemplates a largely paper-based review. Discovery, witness testimony, and hearings—the tools that allow facts to surface—would exist only if OPM decides it wants more information.

For any employee who has lived through a probationary termination, the problem is obvious. Without access to documents or testimony, proving pretext or improper motive becomes nearly impossible. A paper-only system favors the party that already controls the records.

Efficiency is not neutrality. Speed is not fairness. When careers are on the line, process matters.

Why This Should Matter Beyond Probation

Probationary employees are often where agencies test the boundaries of accountability. If decision-making authority can be centralized and procedural safeguards reduced here, it raises an uncomfortable question: what comes next?

Federal employment protections have always been incremental. They are rarely dismantled all at once.

This Is the Moment to Be Heard

This rule is not final. Public comments are open until January 29, 2026, at 11:59 PM Eastern. These comments become part of the administrative record—documents agencies must review and respond to.

Effective comments do not need legal jargon. They need lived experience. Explain how probation works in practice. Explain why neutral decision-makers and real procedures matter. Explain the consequences when employees are treated as disposable rather than accountable.

For probationary employees right now: know your probation end date, document everything, and do not wait to seek guidance if a notice arrives.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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