Attorneys for Federal Employees — Nationwide

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Today at a Glance

• HHS Probationary Firings: An arbitrator has ruled that the Department of Health and Human Services carried out a reduction in force disguised as probationary terminations in 2025, and that it violated its contract with the National Treasury Employees Union by skipping notice and bargaining.

• Army Firing Timeline: A new Army policy compresses performance-based removals into roughly a month and gives the employee seven calendar days to answer, down from the longer window earlier versions allowed.

• Suitability Rule Effective Thursday: OPM's final Suitability and Fitness rule takes effect July 30. It formalizes suitability actions — including removal and a governmentwide debarment of up to three years — based on conduct that happens after you were hired.

Top Stories:

1. An Arbitrator Calls the 2025 HHS Probationary Firings a Reduction in Force in Disguise

Source: Federal News Network, July 27, 2026

TL;DR: Arbitrator Kathleen Jones Spilker sustained the National Treasury Employees Union's (NTEU) grievance against HHS on July 24, 2026, finding the department violated its national collective bargaining agreement (CBA — the negotiated contract between an agency and a union) when it terminated approximately 3,495 probationary and trial employees on February 14, 2025, and approximately 1,600 more on May 8, 2025. HHS argued it had not conducted a reduction in force (RIF — a layoff governed by its own set of federal rules) in February. The arbitrator disagreed, writing that the agency "did not conduct an individualized assessment" of the employees it terminated and that "the sheer large number of employees that were terminated in a matter of days discredits any argument that these terminations were due to an analysis that individual employees were performing unsatisfactory or for conduct reasons." She concluded the February action was "clearly from its inception through its execution a reduction in force masquerading as probationary terminations," and found a separate violation of the contract article requiring the agency to bargain over changes in personnel policies and working conditions. As to the May 8 terminations, she found HHS relied on a regulation that had not yet taken effect and that the action violated 5 C.F.R. Part 315, Subpart H. The award opens the door to a negotiated remedy; Federal News Network reported that HHS did not immediately respond to a request for comment. It is the second arbitration loss for the administration this month, following Arbitrator Christopher Shulman's decision ordering the IRS to restore telework and remote work.

For federal employees, this means:

• If you were removed in a large batch as a "probationary" employee, the scale and speed of the action can itself be evidence that the agency ran a RIF and owed you RIF procedures — competitive area, retention register, tenure, veterans' preference, and notice.
• For bargaining-unit employees, the grievance and arbitration track can reach mass actions that the Merit Systems Protection Board (MSPB) may hold are outside its jurisdiction. Preserve both routes early; the filing deadlines are short and run independently.
• An arbitration award is not self-executing while exceptions are pending before the Federal Labor Relations Authority (FLRA). Ask your union whether exceptions were filed and what the compliance posture is before you change your own plans.

Legal Insight.

Reduction-in-force procedures are set by 5 C.F.R. Part 351, and the label an agency puts on an action does not control — what the agency actually did does. Probationary terminations are governed by 5 C.F.R. Part 315, Subpart H, and the bargaining obligation the arbitrator enforced arises under the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7114, 7116(a)(5). Under 5 U.S.C. § 7122, a party may file exceptions to an arbitration award with the FLRA within 30 days of service; if none are filed, the award becomes final and binding. If you were caught in a 2025 mass termination and have not yet had your rights assessed, this is the moment to consult a federal employment attorney — remedies here are being negotiated now.

2. The Army Compresses Its Firing Process — Seven Days to Answer, About a Month Start to Finish

Source: Federal News Network, July 27, 2026

TL;DR: An Army policy issued July 7, 2026 (Army Directive 2026-18) sets a roughly month-long timeline for reporting, investigating, and deciding whether to remove a civilian employee for unacceptable performance. Under the directive as reported, a supervisor has seven days from the date performance is determined unacceptable to contact the local personnel office and propose removal; personnel and legal staff must respond within 10 calendar days; and an official one or two levels above the supervisor, or outside that chain, has 30 days from the written notice to decide on discipline or removal. The employee now has seven calendar days to respond, "or as consistent with collective bargaining agreements," and Federal News Network reported that the policy removes flexibility earlier versions had allowed. Army spokesperson Christopher Surridge said in a July 24 email that "unacceptable performance is defined as any Army civilian who fails to meet the expected results in one or more performance element(s)," that "performance evaluations and terminations for unacceptable performance remain based on non-discriminatory, merit-based criteria," and that the change aligns Army policy with the Defense Department timeline set out in the September 2025 directive on separating employees with unacceptable performance. The directive includes templates for proposal and decision notices that point employees to the MSPB, and it allows commanders to offer bonus pay, early retirement, or up to 12 weeks of leave as a deferred resignation. A shorter track applies to the Army's roughly 24,000 nonappropriated fund employees. The Army's civilian workforce stands at roughly 188,000, down more than 32,000 — about 15 percent — since January 2025.

For federal employees, this means:

• Read the proposal notice for the authority cited. A Chapter 43 performance removal and a Chapter 75 conduct removal carry different notice periods, different burdens of proof, and different defenses. The heading of the notice tells you which clock you are on.
• If you are in a bargaining unit, your CBA response time may be longer than seven calendar days — the directive itself says "or as consistent with collective bargaining agreements." Ask your union representative for the contract language before you assume seven days is all you have.
• A deferred resignation, early retirement, or bonus offer made alongside a proposed removal gives up appeal rights that are hard to recover. Get the offer reviewed before you sign, and calendar your MSPB deadline in case you decline.

Legal Insight.

For a removal or reduction in grade based on unacceptable performance, 5 U.S.C. § 4303(b)(1) entitles the employee to 30 days' advance written notice identifying the specific instances of unacceptable performance and "a reasonable time to answer orally and in writing." For a conduct-based adverse action, 5 U.S.C. § 7513(b) requires 30 days' advance written notice and "a reasonable time, but not less than 7 days," to answer. An appeal to the MSPB must generally be filed within 30 days of the effective date of the action or of receipt of the agency's decision, whichever is later. 5 C.F.R. § 1201.22(b). Because the response window here sits at the statutory floor, a federal employee who receives a proposal notice should consult a federal employment attorney immediately rather than at the end of the answer period.

3. OPM's Suitability Rule Takes Effect Thursday — Conduct After You Were Hired Can Cost the Job and Up to Three Years' Debarment

Source: Federal Register (OPM final rule, Suitability and Fitness, 91 FR 39361), June 30, 2026 (effective July 30, 2026)

TL;DR: OPM's final Suitability and Fitness rule, published June 30, 2026 and effective this Thursday, July 30, amends subparts A through D of 5 C.F.R. Part 731. It updates the specific factors used to evaluate character and conduct, formalizes OPM's authority to take suitability actions based on post-appointment conduct — misconduct that occurs after a person is already working in federal service — and spells out when an agency must refer a matter to OPM and when it may. OPM issued the rule under Executive Order 14210 (February 11, 2025) and the March 20, 2025 Presidential Memorandum on strengthening the suitability and fitness of the federal workforce. A "suitability action" under 5 C.F.R. § 731.101(a) includes cancellation of eligibility, removal, cancellation of reinstatement eligibility, and debarment. In responding to comments, OPM identified the key difference from a Chapter 75 adverse action: a suitability action allows a governmentwide debarment from any competitive-service position or career Senior Executive Service appointment for up to three years, and OPM's authority to complete the action continues even after the individual separates. OPM also declined a commenter's request to build the Douglas factors into the suitability analysis, pointing instead to the additional considerations already in 5 C.F.R. § 731.202(c).

For federal employees, this means:

• The procedural protections live in subparts C and D: written notice of the proposed action with the specific reasons, the right to review the materials the adjudicator relied on, the right to respond in writing, the right to representation, and written notice of the final decision. Those are the steps where a record gets made.
• Once a final suitability decision requiring removal issues, the employing agency must take the employee off its rolls within five workdays. 5 C.F.R. §§ 731.304, 731.404. The window to answer is before the decision, not after it.
• The right to appeal a suitability action under subpart E was not changed by this rule, and the final rule restores the requirement that the decision notice tell you about it. 5 C.F.R. §§ 731.304(b), 731.404(b). A separate OPM proposal that would move suitability appeals out of the Board has not been finalized.

Legal Insight.

Under 5 C.F.R. § 731.202(a) and (b), a suitability determination must rest on the presence or absence of one or more of the specific listed factors — it cannot float free of them — and § 731.202(c) supplies the additional considerations, such as the nature of the position and the recency of the conduct, that shape the outcome. Because a suitability action can carry a governmentwide debarment of up to three years on top of removal, the written response and the materials-review request are the two steps most worth doing carefully and in writing. Suitability actions are appealable under 5 C.F.R. Part 731, Subpart E, and the rule takes effect July 30, 2026, regardless of when the underlying conduct is alleged to have occurred.

Mindful Moment of the Day

Before the Difficult Reply 

A sharp email from a manager, colleague, or stakeholder can pull you into a fast reaction. You may feel your fingers move toward the keyboard before your better judgment catches up. Before replying, take three breaths with your hands off the keys. Name the first draft silently: “This is the angry version,” or “This is the scared version.” Then ask, “What response would protect both the record and my peace?” You can still be direct, document clearly, and ask what needs to be asked. The pause simply helps your words come from steadiness instead of adrenaline. 

Programming Note

Our podcast will be delayed this week — our Media Relations Cooridnator Ruby Alosbanos is out, so the new episode will drop Monday, August 3 instead of this Friday.

Also, this week's emails will not include our usual blog post roundup. Don't worry — the content is still coming, just on Instagram instead. Follow us there so you don't miss it: @southworth_pc

We'll be back to our normal schedule next week, and wish Ruby a great, relaxing vacation.