UNION REP QUIZ #7 (Probationary Employee Rights)
Newly hired probationary employees sometimes decide not to join the union because they think it cannot do a thing for them if they are fired. They could not be more wrong about that. Test your own knowledge of all the appeal routes available to probationers to challenge a dismissal. Read through the list below and mark whether probationers can appeal to a neutral outside the agency in that situation or not. The answer are at the end of the test situations.
Test Situations – Is there a way to appeal an employee’s dismissal during a probationary period…
#1 – If terminated without having received the notice of termination before it was effective, the employee can appeal to MSPB.
#2 – If terminated despite having already served enough time to complete a probationary period, e.g., in prior federal jobs or work seasons.
#3 – If terminated for reasons related to political affiliation or marital status.
#4 -If terminated because of some procedure, rule or requirement that management implemented without notifying and bargaining with the union.
#5 – If terminated because of one’s race, color, national origin, gender, religion, disability status or for being 40 or older.
#6 – If terminated as reprisal for filing an EEO charge she later withdrew or supporting another employee’s efforts to correct discrimination against him.
#7 – If terminated in violation of her rights under the Uniformed Services Employment and Reemployment Rights Act.
#8 – If terminated for exercising his/her rights under FMLA or the FLSA.
#9 – If terminated because a work-related injury rendered an employee temporarily unable to do the job.
- The union can represent the employee at MSPB which has held that depriving an employee who has completed a probationary period prior to receiving a notice of the charges against him/her and an opportunity to reply is a denial of Constitutional due process. 98 MSPR 502. 106 MSPR 178
- Check out these examples of successful probationary appeals to MSPB involving reinstatements (113 MSPR 99), transfers (86 MSRP 476), prior temporary employee service (20 MSPR 16), time spent in a nonduty or LWOP status during the probationary period (99 MSPR 187), It is irrelevant whether the employee signed a document agreeing to another probationary period. McCormick v. Department of the Air Force, 307 F.3d 1339 and 98 M.S.P.R. 409.
- Check out 5 CFR 315.805 for more information. The union can represent in an appeal to MSPB. See also See 111 MSPR 305 and 115 MSPR 204.
- The union can appeal on the employee’s behalf by filing a ULP with FLRA alleging a violation of his/her rights. The employee can’t file this appeal because the right to prior notice of changes is a union right, not the employee’s. Check out IBPO, 35 FLRA 113 and NFFE, 57 FLRA 109. If the employee is fired in violation of her labor rights, e.g., perhaps for filing a grievance, the U.S. Office of Special Counsel also can take that case. Check out Perfetto and Hoyt.
- The union can represent the employee via an EEO charge and complaint to EEOC. Check out Pantoja v. Ashcroft, where a female Correction Officer violated a work rule and was terminated during her probationary period. EEOC reinstated her when it found male employees who violated the same rule were not terminated. See also Bowling v. Henderson where the agency fired an African-American female employee for achieving only 87% on an examination when 95% was passing. However, EEOC found it had retained a Caucasian male employee three years earlier who only achieved a score of 71%. Both were reinstated with back pay and a right to additional money damages.
- Check out EEOC’s short guide to retaliation that lists more examples of what it consider to be retaliatory behavior. The union should also be able to use the negotiated grievance procedure to enforce EEO rights.
- Check out 113 MSPR 168 where an employee in that situation was successful.
- You would think that both challenges could go through the grievance-arbitration procedure, but FLRA has long held that probationary employees cannot use that process to reverse a termination and the 4th Circuit agreed with that view in 2013. An untested option would be to ask the U.S. Special Counsel to investigate and enforce those rights in connection with a prohibited personnel practice action.
- Check out 5 C.F.R. § 353.304(c), 35 MSPR 528 and Roche v. US. Postal Service, 828 F.2d 1555.
The bottom line here is that terminated probationary employees do have options even though you will never see any of them mentioned in the agency termination notice.