PROBATIONERS: WINNING REINSTATEMENT ON A TECHNICALITY
Unless a probationary employee can claim her rights under some employment law were violated, it is 99% certain that if the agency proposes to terminate her she is a goner. In fact, long gone with zero chance of reinstatement. The 1% depends on whether the employee has a sophisticated union rep or private attorney who can show that the agency tripped over one of the rarely spoken about technicalities for terminating a probationer. Stephen LeMaster of the VA (2016 MSPB 25 (2016) must have had one because the MSPB declared that the agency failed to remember that firing an employee for something that happened before she began her federal employment requires the agency give the employee more rights than if it fired her for something she failed to do after she began her fed career. It is known as the pre-appointment versus post-employment distinction.
We are not going to try to mark out a bright-line distinction between the two here. We are going to be content with simply spreading the word among those new to employee representation (and ER Specialists) that there is a difference. If an employee comes to a union rep with a termination letter that in any way mentions something that occurred before they began their fed job, the rep should get in touch with a more experienced rep to make sure the union fully protects the employee. A good start would be reading through the Board’s LeMaster decision which does a fine job of explaining the difference. Another good place to look for help are the nine other articles FEDSMILL.com has already posted about probationers.