The Office of Personnel Management (OPM) updated its guidance to department heads on Tuesday, stating that it is up to the agency to decide whether to fire federal employees.
The slight change in the memo updates the OPM’s Day 1 order directing all government agencies to compile a list of employees who are still on probation, which means those who were hired or promoted within the last year or two — a period that varies by agency.
“Please keep in mind that this memorandum does not direct agencies to take any specific performance-based actions with respect to probationary employees. “Agencies have ultimate decision-making authority and responsibility for such personnel actions,” the OPM stated in the Tuesday update.
The change comes after unions scored a court victory Thursday after suing over the Trump administration’s plans to fire probationary employees.
“OPM’s revision of its Jan. 20 memo is a clear admission that it unlawfully directed federal agencies to carry out mass terminations of probationary employees – which aligns with Judge Alsup’s recent decision in our lawsuit challenging these illegal firings,” the American Federation of Government Employees said in a statement Tuesday.
“Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired.”
While the suit was only filed on behalf of six agencies, U.S. District Judge William Alsup ordered the OPM to rescind the memo, finding that the employees’ terminations were likely illegal.
“[The] Office of Personnel Management does not have any authority whatsoever, under any statute in the history of the universe, to hire and fire employees within another agency,” Mr. Alsup said.
“The agencies could thumb their nose at OPM if they wanted to,” according to him.
It is unclear whether the updated memo complies with the judge’s order, which requires the memo to be rescinded.
“OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees,” he wrote, citing the six agencies, were “unlawful, invalid, and must be stopped and rescinded.”
This is not the first time the OPM has had problems with Alsup.
As reported by Government Executive, the OPM denied directing government agencies to fire probationary employees. Aside from the Jan. 20 memo instructing agencies to compile a list of probationary employees, the OPM’s order for agencies to carry out the firing was widely reported in February.
“OPM did not direct agencies to terminate probationary employees based on performance or misconduct,” acting OPM Director Charles Ezell wrote in a sworn statement filed in court.
Court filings also include an email from the OPM dated February 14 stating that “we have asked that you separate probationary employees that you have not identified as mission critical.”
