WASHINGTON — President Donald Trump on Tuesday abruptly walked back his directive to federal agencies to fire thousands of probationary employees, a change driven not by a desire to preserve people’s jobs but an attempt to comply with a judge’s ruling that the way in which he’s been carrying out mass firings is likely illegal.
In revised guidance issued to the heads of federal agencies, the Office of Personnel Management ― the human resources agency of the federal government ― tries to rewrite history by claiming it never actually ordered agencies to fire probationary employees (people who generally have held their jobs for a year or less).
Instead, OPM claims it’s been up to each agency all along to decide who to fire.
“Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees,” reads the updated OPM guidance. “Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.”
This revised guidance comes after U.S. District Judge William Alsup ruled last Thursday that OPM had no authority to order agencies to fire thousands of probationary workers and that its actions were probably illegal. So OPM is now putting it on paper that it’s up to each federal agency to decide who to fire ― and not OPM ― in order to avoid more lawsuits.
Underscoring that this move is more about the Trump administration covering for itself than preserving essential government jobs, OPM’s guidance doesn’t say anything about federal agencies being encouraged to rehire all the people who were fired.
Everett Kelley of the American Federation of Government Employees, which brought the lawsuit in Alsup’s court, said the new guidance shows that the Trump administration knows that what it’s been doing is illegal.
“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,” Kelley said in a statement. “Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired.”
Separately, the memo spells out how agencies can use administrative leave as a way to remove employees from the workplace. It gives agencies until Sept. 13 to update their internal policies to comply with OPM’s regulations on this.
OPM’s new guidance also comes after a government employee oversight board last week ruled in favor of six probationary employees who were fired and who alleged that their terminations were illegal. Democracy Forward, a nonprofit legal group that’s filed numerous lawsuits against the Trump administration, is currently working to expand that decision to cover all probationary employees who were illegally fired.
This is almost certainly a factor in the Trump administration’s decision to suddenly revise its OPM guidance.
“The government cannot sidestep legal protections to implement massive causeless and politically motivated terminations,” Skye Perryman, president and CEO of Democracy Forward, said in a statement. “We are working hard to support those who support our nation.”
It’s not clear what OPM’s move means for the thousands of employees already fired. But the judge’s ruling last week has resulted in some federal agencies scrambling to rehire people they just fired. The National Science Foundation, for one, is trying to reinstate 84 employees it fired as part of OPM’s directive. One of those 84 people told HuffPost on Monday that he and several of his colleagues learned they were getting their jobs back not from NSF but from other co-workers and via the press.
“What a joke, finding out from colleagues and online — and not directly,” said the employee, who requested anonymity so he doesn’t get fired again.
Federal labor unions have been filing lawsuits aimed at blocking the probationary firings and getting workers reinstated, arguing the White House has usurped Congress’ control over spending and violated rules that govern federal layoffs.
Julie Wilson, general counsel of the National Treasury Employees Union, told HuffPost on Tuesday that the probationary firings are “indisputably a reorganization attempt” and that the administration had failed to follow proper procedures, including giving workers notice.
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“The government has not followed any of those [rules] in terminating employees to date, to include the mass firing of probationary employees,” Wilson said.
Clarification: This story has been updated to clarify that the Sept. 13 deadline in OPM’s guidance is for agencies to update their policies relating to administrative leave, not for agencies to produce plans for firing probationary employees.
