OSC Flip-Flops on Probationary Firing Rules

In a startling reversal, the Office of Special Counsel (OSC) now argues that federal agencies can terminate probationary employees with few limits. For probationers—especially those impacted by February’s mass firings—this is more than just a policy shift. It’s a wake-up call.

Why OSC’s Reversal Matters

Earlier this year, OSC made headlines by asserting that the February 2–14 mass firings were potentially unlawful reductions in force (RIFs) masquerading as probationary terminations. They won emergency stays while the Merit Systems Protection Board (MSPB) gathered evidence. The legal argument then was clear: mass terminations based on headcounts, without individualized evaluations, violated federal regulations.

Now, under new leadership, OSC has flipped its stance. Their latest filing says agencies have “wide open authority” to remove probationary employees for almost any reason—so long as basic procedural boxes are checked. They even chastised agencies for not firing more aggressively. But this reinterpretation isn’t just aggressive—it may be legally flawed.

The Law Still Sets Limits

Under 5 C.F.R. §§ 315.803–804, a probationer can be removed only for failure to demonstrate fitness for the job. That’s not a free pass for blanket terminations. Agencies must conduct individualized assessments, provide notice, and ideally document counseling efforts. Firing 50 people using identical form letters doesn’t cut it.

Just because someone is probationary doesn’t mean their rights vanish. The Civil Service Reform Act, RIF regulations, and 40+ years of MSPB precedent prohibit mass removals that resemble layoffs without RIF procedures—like bump-and-retreat rights or veterans’ preference. As attorney Shaun Southworth aptly put it, “If it walks like a RIF and quacks like a RIF—it’s a RIF.”

What Should Probationers Do Now?

1. Don’t Assume It’s Over
   If you were swept up in February’s terminations, your case may still be viable. Evidence collected during the MSPB’s emergency stay period remains relevant. The Board has not issued a final ruling.

2. Build Your Record
   Probationers should document everything—performance reviews, email instructions, workloads, and any indications of group-level decisions. In employment law, evidence is everything.

3. Act Quickly
   Federal employment time limits are short—sometimes as brief as 30 days from notice. If you wait, you may lose your chance to challenge an illegal firing.

Principles Still Matter

OSC’s about-face may reflect political winds, but it is not the last word. Courts and the MSPB are still grounded in statutes and precedent. In Shaun Southworth’s legal view, the earlier OSC position—that February’s mass firings violated RIF procedures—remains stronger under the law.

For ongoing updates or to ask your own questions, consider joining our Power Hub membership. Knowledge—not fear—wins federal employment cases.

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.