The Office of Personnel Management on Tuesday updated its guidance to department heads that demanded the firing of federal workers, adding that it’s up to the agency on whether to boot their hires.
The slight shift in the memo updates a Day One order from OPM directing all government agencies to pull together a list of all employees still in their probationary period, those who were either hired or promoted within the last year or two – a period that varies by agency.
“Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions,” OPM wrote in the Tuesday update.
The tweak comes after unions scored a court victory Thursday after suing over the Trump administration plans to fire probationary workers
“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 brought on behalf of employees at six agencies, Alsup ordered OPM to rescind the memo, finding the termination of the employees was likely unlawful.
“(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,” Alsup said.
“The agencies could thumb their nose at OPM if they wanted to,” he added.
It’s not clear that the update by OPM complies with the judge’s order, which calls for the memo to be rescinded.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the termination of employees,” he wrote, listing the six agencies, were “unlawful, invalid, and must be stopped and rescinded.”
It’s not the first time OPM has had issues with Alsup.
As Government Executive noted, OPM had denied directing government agencies to fire probationary employees. Beyond the Jan. 20 memo directing agencies to organize a list of probationary employees, 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 either on performance or misconduct,” acting OPM Director Charles Ezell wrote in a sworn statement submitted in court.
Court filings also include a Feb. 14 email from OPM saying that “we have asked that you separate probationary employees that you have not identified as mission critical.”
