Trump’s personnel office walks back order to fire probationary employees

The Trump administration’s Office of Personnel Management issued new guidance on Tuesday making clear it is not ordering federal agencies to fire probationary employees.

OPM acted just days after a federal judge ruled its previous Jan. 20 directive illegal.

The revised memo includes a specific disclaimer that OPM isn’t directing any firings.

“Please note that, by the memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees,” acting OPM Director Charles Ezell said in the memo. “Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.”

Amid a wave of firings, the probationary employees have garnered particular attention.

They are employees who have been in their job for less than a year, or less than two years for some particular posts.

Trump officials say probationary workers were easy targets because they don’t have the same level of protection as other employees.

The Jan. 20 memo from OPM seemed to encourage the firings, asking agencies to come up with lists of probationary employees and decide who “should be retained.”

Agencies took that as a directive to begin firings.

OPM disputed that characterization in court, but U.S. District Judge William Alsup, sitting in California, ruled against OPM last week and ordered it to make clear it couldn’t direct probationary firings.

“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 at another agency,” he ruled.

He ordered OPM to notify federal agencies of his ruling.

American Federation of Government Employees President Everett Kelley demanded that agencies re-hire the fired 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,” Mr. Kelley said.

Hours after the judge’s ruling, the Office of Special Counsel, the government’s official watchdog for federal employees, said it had turned a list of fired probationary employees at the Agriculture Department over to the Merit Systems Protection Board.

The MSPB, which rules on adverse personnel actions against federal workers, had requested the list after Special Counsel Hampton Dellinger asked for a 45-day pause on more than 5,000 probationary firings at the department.

Mr. Dellinger said the firings “appear to have been carried out in a manner inconsistent with federal personnel laws.”

Adding to the intrigue is that Mr. Trump has fired Mr. Dellinger from his post, but a federal judge has blocked the action and ordered that Mr. Dellinger can remain on the job while he challenges the ouster. The judge said the special counsel is supposed to be independent and allowing a firing without cause would disrupt that.

The Justice Department says the result is that Mr. Trump is now forced to employ an agency leader who is actively working against the president’s agenda.