Navigating the Probationary Period After Van Wersch and McCormick

Navigating the Probationary Period After Van Wersch and McCormick
Navigating the Probationary Period After Van Wersch and McCormick
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MSPB makes clear how it’s possible for probationers to have appeal rights. Since the U.S. Court of Appeals for the Federal Circuit issued its decisions in Van Wersch v. Department of Health and Human Services and McCormick v. Department of the Air Force, the interpretation of the factors affecting whether an employee serving in a probationary period has appeal rights has changed.  “Federal agencies and employees need to understand the outcomes of these decisions to know whether an individual employed by the U.S. Government has full procedural and appeal rights upon termination, even when employed in a probationary or trial status,” said Chairman Neil A. G. McPhie.

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Table of Contents

Executive Summary i

Introduction 1

Interpreting the Law 5

Before Van Wersch 7

Van Wersch and McCormick 11

Issues Arising from the Federal Circuit’s Decisions 17

Federal Regulations are Inconsistent with Van Wersch and McCormick 17

Trial Periods in Certain Excepted Service Positions 20

Waivers of Appeal Rights in Exchange for a New Appointment 22

Possible Impact on Merit-Based Hiring 26

Conclusion and Recommendations 29

OPM Should Amend its Regulations to Conform with Current Law  29

Agencies Should Educate Staff and Quickly Identify

when Probationers Will Obtain Full Rights 31

Agencies Should Specify that the Period of an Internship

is a Trial or Probationary Period 33

Congress Should Consider Amending 5 U.S.C. § 7511(a)(1) 33


Federal employees, their supervisors, agency management, union personnel, especially Human Capital officers and employees across the U.S. Federal Government may be interested in this report.  Additionally, members of Congress, and Federal managers within the Office of Management and Budget, and Office of Personnel Management that is responsible for policy making authority may find this guide helpful as a reference with human resources and civil service matters.  Additionally, students pursuing research for courses within these fields, especially public administration, human resources, employment law, organizational development, and industrial-organizational psychology may find this primary source document that deals with civil service issues helpful for assignments.

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