NOAA Workforce Management Office

Serving NOAA's Most Valuable Asset - People

NOAA Supervisory Resource Guide

How are Probationary Periods an Effective Tool for Supervisors?

Typical Scenarios:

• You need to decide whether to retain or terminate the services of an employee who is serving a probationary period:
  • because of performance problems.
  • o because of misconduct (e.g., absenteeism, unprofessional behavior, etc.).
  • because of disclosure of unfavorable information obtained as a result of pre or post-appointment investigations.
• You are confronted with a first time supervisor or manager who has been ineffective, during the probationary period, completing their assignment(s) because of failure to meet performance expectations.

Principle:

Close evaluation of probationary employees during their initial appointment to Government service is critical to meeting NOAA’s mission and goals. Pay close attention to a probationary employee’s competencies, performance capabilities, and compatibility for continued employment.

The probationary period is established as the last step in the examining process, in order to provide the supervisor the opportunity to evaluate a probationary employee’s performance and/or fitness (conduct) for continued Government service. (See 5 CFR 315.801)

The probationary period is a valuable assessment tool, and is the alternative to ”living with” a new selectee not well-suited to Federal employment.  One of the most important expectations employees have of their supervisors is that employees who are not contributing their fair share to the organization’s success be dealt with!

How do I get started?

1. Set Standards of Performance and Conduct

• Communicate performance and conduct expectations both in writing and orally within thirty (30) days of appointment.
• Clearly identify performance requirements and objectives (to include all established performance standards for the position).
• Give detailed instructions about rules and standards of conduct (e.g., attendance, leave-requesting procedures, office coverage, team activities and courtesies, as well as NOAA's corporate commitment to diversity, equality of opportunity, maintaining a harassment-free workplace, etc.).

2. Analyze/Plan for Meeting Required Training Needs, Using an Individual Development Plan

• Distinguish between skills, abilities and competencies the employee is expected to already possess and skills that the employer plans to teach the employee.
• Work with the employee in finding good training programs.

3. Establish Monitoring Systems

• Develop and implement an effective means and method to track workload.
• Select samples of your probationary employee's good work and work that needs improvement. Meet with the probationary employee and use e-mail to communicate about good work and work that needs improvement. Be sure to engage the probationary employee more regularly than you would an experienced employee.

4. Provide opportunities to assess performance and/or conduct

• Provide work assignments for employees to demonstrate the competencies critical to their success.
• Monitor and provide feedback re: the rules and standards of conduct mentioned in #1 above.
• If the probationary employee is having difficulty, seek consultation from your servicing WFMO HR Advisor as early in the assessment process as possible.

5. Take timely action to correct performance deficiencies and misconduct during probation

• Provide verbal counseling and/or written guidance to correct performance deficiencies and/or lesser instances of misconduct during the probationary period. (Efforts to correct such deficiencies must be documented in writing).
• Ensure that the employee understands that failure to correct performance deficiencies and/or misconduct may result in termination during probation.
• Always consult with your servicing WFMO HR Advisor on how best to address the correction of performance and conduct issues involving probationary employees.

6. Reaching a decision to retain or terminate

• Steps to initiate termination should occur as soon as it becomes apparent that the employee has not and will not remedy the performance or conduct deficiencies which otherwise make the employee unsuited for Government service.
• Always consult with your servicing WFMO HR Advisor regarding the preparation of a notice of termination during probation.

Termination of probationers - What's required?

1. For Post-Appointments Reasons

• Written notice of termination:
  • Must describe the performance or conduct deficiency which serves as the basis of the termination notice (e.g., "Unsatisfactory attendance", unacceptable performance", "Excessive Tardiness", etc.).
  • Must provide your conclusion about performance or conduct deficiencies.
  • Must include the effective date of the termination.
  • oMust be effected before the anniversary date of the initial appointment.
  • Caution: Unless otherwise stated, separations are not effective until midnight. If employee finishes tour of duty on 365th day, he or she has then completed probation. Do not wait until the last few days of the probationary period to terminate a probationer's appointment. (Ideally, the effective date of termination should be at least one or two weeks before the end of the probationary period).
• Employee appeals: (See 5 CFR 315.806)
  • Appeal to Merit Systems Protection Board (MSPB), but only for discrimination based on partisan political beliefs or marital status; however, the appeal cannot be based on the merits of the case. An MSPB appeal may also be based on discrimination due to race, color, religion, sex, national origin, handicapping condition, or age, but only if such discrimination is raised in addition to either marital status or partisan political reasons.
  • Complaint of discrimination based on race, color, religion, sex, national origin, handicapping condition, or age - through normal EEO complaint channels.
  • No rights to administrative and/or negotiated grievance process.

2. For Pre-Appointment Reasons (Generally, falsification of application or results of pre-employment investigation) (See 5 CFR 315.805)

• Employee is entitled to:
  • Advance notice of proposed termination with detailed reasons.
  • Right to reply.
  • Decision after consideration of reply.
• Employee appeals: (See 5 CFR 315.806)
  • Appeal to Merit Systems Protection Board (MSPB), but only for discrimination based on partisan political beliefs or marital status; however, the appeal cannot be based on the merits of the case.
  • An MSPB appeal may also be based on discrimination due to race, color, religion, sex, national origin, handicapping condition, or age, but only if such discrimination is raised in addition to either marital status or partisan political reasons.
  • Complaint of discrimination based on one of seven above-listed EEO factors - through normal EEO complaint channels.
• No rights to administrative and/or negotiated grievance process.

Supervisory and Managerial Probationers. Not everyone who aspires to and is selected for a supervisory or managerial position is well suited for the new position. Logically, the only sure way for both the employer and the employee to make this determination is have the newly-appointed supervisor or manager serve in the position.

Satisfactory completion of the prescribed probationary period is a prerequisite to continued service in the supervisory or managerial position.

Generally, an employee who does not satisfactorily complete the probationary period is entitled to be assigned to a position of no lower grade and pay than the one left to accept the supervisory or managerial position (See 5 CFR 315.907).

• When Required: (See 5 CFR 315.904)
  • First time supervisory and/or managerial position.
• Length of Probation
  • Established by agency.
  • DOC specifies a one-year period.
• Appeal Rights
  • For demotion back to previous grade due to performance/conduct during probation:
    • No appeal on the merits.
    • Can only appeal to MSPB if non-frivolous allegation of discrimination because of marital status or partisan political affiliation.
  • For removal, demotion lower than previous grade, or an action for reasons not related to supervisory or managerial performance:
    • Fullappeal rights per status of employee and type of action.

SUMMARY:

Use Good Management Practices:

• Be sure to convey the conditions of the probationary period to the employee immediately upon the employee beginning the appointment.
• Communicate performance/ conduct expectations clearly and immediately (and as often as required).
• Confront the employee at the first sign of significant performance or conduct deficiency.
• Keep good records, track progress regularly, and keep employee informed.
• If an employee has not demonstrated conduct and performance suitable for Government service, take action to terminate during probation.
• Seek consultation, advice and assistance from your WFMO HR Advisor on matters related to the appointment, training, performance, and conduct of probationary employees.

[Code of Federal Regulations]
[Title 5, Volume 1, Parts 1 to 699]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access

[CITE: 5 CFR 315.801]
[Page 166]

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT--Table of Contents

Subpart H--Probation on Initial Appointment to a Competitive Position

Sec. 315.801 Probationary period; when required.

(a) The first year of service of an employee who is given a career or career-conditional appointment under this part is a probationary period when the employee:

1. Was appointed from a competitive list of eligibles established under subpart C of this part;
2. Was reinstated under subpart D of this part unless during any period of service which affords a current basis for reinstatement, the employee completed a probationary period or served with competitive status under an appointment which did not require a probationary period.

(b)A person who is:

1. Transferred under Sec. 315.501; or
2. Promoted, demoted, or reassigned; before he completed probation is required to complete the probationary period in the new position.

(c) A person who is reinstated from the Reemployment Priority List to a position in the same agency and the same commuting area does not have to serve a new probationary period, but, if separated during probation, is required to complete the probationary period in the new position.

(d) Upon noncompetitive appointment to the competitive service under the Postal Reorganization Act (39 U.S.C. 101 et seq.), an employee of the Postal Career Service (including substitute and part-time flexible) who has not completed 1 year of Postal service, must serve the remainder of a 1-year probationary period in the new agency.

(e) A person who is appointed to the competitive service either by special appointing authority or by conversion under subparts F or G of this part serves a 1-year probationary period unless specifically exempt from probation by the authority itself.

[33 FR 12418, Sept. 4, 1968, as amended at 39 FR 962, Jan. 4, 1974; 45 FR 43365, June 27, 1980; 60 FR 54504, Oct. 16, 1995; 65 FR 14432, Mar. 17, 2000]

[CITE: 5 CFR 315.805]
[Page 165]
Subpart H--Probation on Initial Appointment to a Competitive Position

Sec. 315.805 Termination of probationers for conditions arising before appointment.

When an agency proposes to terminate an employee serving a probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following:

(a) Notice of proposed adverse action. The employee is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.

(b) Employee's answer. The employee is entitled to a reasonable time for filing a written answer to the notice of proposed adverse action and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.

(c) Notice of adverse decision. The employee is entitled to be notified of the agency's decision at the earliest practicable date. The agency shall deliver the decision to the employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the action, inform the employee of his right of appeal to the Merit Systems Protection Board (MSPB), and inform him of the time limit within which the appeal must be submitted as provided in Sec. 315.806(d).

Sec. 315.806 Appeal rights to the Merit Systems Protection Board.

(a) Right of appeal. An employee may appeal to the Merit Systems Protection Board in writing an agency's decision to terminate him under Sec. 315.804 or Sec. 315.805 only as provided in paragraphs (b) and (c) of this section. The Merit Systems Protection Board review is confined to the issues stated in paragraphs (b) and (c) of this section.

(b) On discrimination. An employee may appeal under this paragraph a termination not required by statute which he or she alleges was based on partisan political reasons or marital status.

(c) On improper procedure. A probationer whose termination is subject to Sec. 315.805 may appeal on the ground that his termination was not effected in accordance with the procedural requirements of that section.

(d) An employee may appeal to the Board under this section a termination which the employee alleges was based on discrimination because of race, color, religion, sex, or national origin; or age (provided that at the time of the alleged discriminatory action the employee was at least 40 years of age); or handicapping condition if the individual meets the definition of ``handicapped person'' as set forth in regulations of the Equal Employment Opportunity Commission at 29 CFR 1613.702(a). An appeal alleging a discriminatory termination may be filed under this subsection only if such discrimination is raised in addition to one of the issues stated in paragraph (b) or (c) of this section. [33 FR 12418, Sept. 4, 1968, as amended at 40 FR 15380, Apr. 7, 1975; 44 FR 48951, Aug. 21, 1979; 55 FR 29339, July 19, 1990]

Subpart I--Probation on Initial Appointment to a Supervisory or Managerial Position

Sec. 315.904 Basic requirement.

(a) An employee is required to serve a probationary period prescribed by the agency upon initial appointment to a supervisory and/or managerial position.

(b) An employee is required to complete a single probationary period in a supervisory position and a single probationary period in a managerial position, regardless of the number of agencies, occupations, or positions in which the employee serves. However, an agency may by regulation provide for exceptions to the probationary period for managers who have satisfactorily completed a probationary period for supervisors when justified on the basis of performance and experience.

(c) Employees who, as of the date this requirement is effective, are serving or have served in Federal civilian supervisory or managerial positions without time limitation, or in time-limited supervisory or managerial positions under an official assignment exceeding 120 days, are exempt from its provisions, except that supervisors who are assigned to managerial positions may, according to agency regulations, be required to serve a probationary period for managers.

Sec. 315.907 Failure to complete the probationary period.

(a) Satisfactory completion of the prescribed probationary period is a prerequisite to continued service in the position. An employee who, for reasons of supervisory or managerial performance, does not satisfactorily complete the probationary period is entitled to be assigned, except as provided in paragraph (b) of this section, to a position in the agency of no lower grade and pay than the one the employee left to accept the supervisory or managerial position.

(b) A nonsupervisory or nonmanagerial employee who is demoted into a position in which probation under Sec. 315.904 is required and who, for reasons of supervisory or managerial performance, does not satisfactorily complete the probationary period is entitled to be assigned to a position at the same grade and pay as the position in which he or she was serving probation. The employee is eligible for repromotion in accordance with agency promotion policy.

(c) The agency must notify the employee in writing that he or she is being assigned in accordance with this section.

[49 FR 39287, Oct. 5, 1984, as amended at 60 FR 53505, Oct. 16, 1995]

• For additional information: DAO 202 315 - Probationary & Trial Periods

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Page last edited: February 06, 2012

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