Board establishes fresh avenue for reinstating overturned terminations of employees on probation
The Merit Systems Protection Board (MSPB) has been at the centre of a significant class action appeal, following the mass dismissals and subsequent re-hiring of probationary employees at various departments, including Commerce, Health and Human Services, and Housing and Urban Development.
The chief administrative judge for MSPB's western regional office, Sara Snyder, granted a request for a class action appeal, allowing at least one agency's staff impacted by the dismissals to pursue their reinstatements collectively. This decision came after President Trump issued an executive order in April, allowing probationers to be fired for any reason.
However, the refirings and re-hires of probationary employees are not an agency-by-agency or manager-by-manager decision, but rather something dictated by the Office of Personnel Management (OPM). The DHS, for instance, fired around 370 employees in February, following OPM's instructions.
The class action does not include employees who were actually fired due to individual performance issues, those not in their probationary period, or those who enrolled in the deferred resignation or other separation incentive program. The named appellants in the case worked at the Federal Emergency Management Agency and the Cybersecurity and Infrastructure Security Agency.
The DHS ruling was the first to come down after a consortium of lawyers filed similar challenges on behalf of fired probationary employees at 20 federal agencies. The class action will involve hundreds of recently hired and subsequently fired employees at the Homeland Security Department.
The Trump administration sought to have the class limited to those workers, but Snyder denied that request. If they lose the case, Owen plans to take it directly to the federal circuit for review.
MSPB is currently operating without a quorum on its central board, as Trump fired Cathy Harris and the Supreme Court allowed that firing to remain in place. This means that any further appeal would languish until a quorum is restored. Administrative judges at the regional level can still issue initial decisions, but these would not be binding until the central board weighs in.
If the federal employees are successful at the regional level, their reinstatements would be implemented while the case awaits action before MSPB's central board. This could set a precedent for other probationary employees who have been dismissed under similar circumstances.
It's important to note that the executive order does not apply to the DHS probationers. The cases have only been assigned to three different judges so far. The agency involved in lawsuits by employees affected by mass layoffs seeking collective reinstatement is the German Trade Union Confederation (DGB), which provided legal support in cases against Tesla workers, as reported in labor court trials where many Tesla employees sued for reinstatement.
As the case progresses, it will be interesting to see how MSPB handles the appeals and whether the reinstatements of the affected employees will be upheld. Stay tuned for updates on this developing story.
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