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Washington D.C. — The leader of the National Treasury Employees Union (NTEU) called proposed Office of Personnel Management (OPM) regulation changes that will affect probationary employees in the competitive service “long overdue,” but she said the protections offered by the proposed amendments do not go far enough in protecting the rights of federal employees.

The modifications – which will have the regulations finally conform to existing law – acknowledge full due process rights for all probationary employees in the competitive service with a year or more of continuous service in the event they face an adverse action under Chapter 75 of the Civil Service Reform Act.

NTEU President Colleen M. Kelley offered her assessment of the proposed changes in comments filed July 2 in response to an OPM Federal Register notice of its intention to amend its regulations regarding adverse action rights.

“It is long past time that OPM modified its regulations to make clear that an employee serving a probationary period must be accorded full due process rights if the individual has completed one year of current continuous service,” Kelley said. “Agencies may inadvertently rely on these regulations and fail to notify employees of appeal rights and probationary employees may be misled into believing that they do not have appeal rights.”

NTEU has been forced to arbitrate to secure relief for several IRS probationary employees who were dismissed without proper notification of their due process rights. In a March 3 decision, the arbitrator directed IRS to pay back pay and offer reinstatement to the three tenured probationary employees the agency terminated without providing advance notice and an opportunity to respond.

Despite court precedent dating back to 1999 and 2002, Kelley explained, OPM delays have resulted in “confused agencies, managers and employees.”

“Some stewards were unable to give probationary employees informed advice because they did not understand the circumstances under which the employees had appeal rights,” President Kelley added. “Some employees may have been encouraged to resign in advance of a threatened termination in the mistaken belief that the termination was unchallengeable.”

On another aspect of the proposed amendments, Kelley questioned why the regulation changes did not include due process rights connected with performance-based removals under Chapter 43 of the Civil Service Reform Act. As she pointed out, “The same statutory language that led the courts to find that probationary employees with a year of continuous service are entitled to adverse action rights under Chapter 75 is found in Chapter 43.”

NTEU is the largest independent federal union, representing more than 150,000 employees in 31 agencies and departments.