New OPM Rules: How the 2026 Federal Probationary Period Changes Affect New Federal Employees

TLDR: New federal employees are recruited with the explicit intention and possibility of the hiring agency terminating them within the first year, for any reason or without a reason.

For decades, the federal employee probationary period was a waiting game. If you reached your one-year anniversary without being terminated, you passed your probationary period. The burden was on your manager to initiate a probationary termination if warranted. This was actually a good system that worked well. As agency employee and labor relations specialists, we collectively terminated thousands, of probationary employees over the years. However, the old system did not work for lazy managers or inept human resources personnel. Recent Office of Personnel Management (OPM) updates and Civil Service Rule XI have fundamentally shifted the process in such a manner, it is best described as the following: on the day a new federal employee is hired, they are scheduled to be automatically fired absent direct intervention by their manager. In our opinion, this shift in policy was intended to address manager shortcomings in managing employees more than any other reason.

At InformedFED, we translate complex federal personnel law and regulation into actionable career protection. If you are a new hire or a manager, here is what you need to know about the transition from "passive" to "active" certification.

Previously

As previously mentioned, the processes for probationary monitoring and termination required the agency supervisor or manager involved to initiate a probationary termination, usually for specific reasons. Not a difficult task. They would reach out to human resources, who would then compile an evidence file and assess whether the termination aligned with rules, laws, and regulations. Although the threshold for terminating a probationary employee in federal service was very low as probationary employees did not enjoy the same due process protections as tenured employees, there was indeed a minimum "bar" to meet: a legitimate non-discriminatory reason This minimum bar was to ensure the termination was not motivated by discrimination. Regardless, these actions could be processed in minutes and effected the same day by a minimimally qualified employee and labor relations specialist.

The End of Automatic Tenure

As of July 2025, and moving into 2026, federal employment is no longer finalized by the mere passage of time. OPM now requires an affirmative, written certification before an employee officially completes their trial period. Absent such certification, the probationary employee is automatically terminated, by default, from employment. We have reviewed at least two cases in which the employee was automatically terminated because their supervisor literally forgot to do the written certification. We suspect there are likely many more cases of which we are unaware.

What is the "Public Interest" Standard?

Under the new Civil Service Rule 11.5, agencies aren't just looking at your performance metrics. They must now determine if finalizing your appointment "advances the public interest." This is a very broad analytical perspective that encompasses any reason, or no reason. This shift is significant because it is abstract, nebulous, and opaque. It allows agencies to consider "organizational fit" and "shifting mission needs" more broadly than the old standards of 5 CFR § 315.803. For the employee, this means your "fitness" is judged not just by what you do or how good you do it, but how your role serves the agency’s evolving goals as defined internally by your agency and under direct pressure from the Trump administration and OPM. If the agency decides they hired too many probationary employees, they can terminate their employment for that reason alone without even explaining the reasoning. If Trump wants to "punish" an agency, he can direct the agency, without any reason, to terminate all probationary employees to drive agency performance down. Similiar to the arbitrary RIF's the Trump administration conducted in 2025.

Mandatory 90-60-30 Day Certification Timeline

The OPM 2025 implementing regulations (90 FR 26727) established a strict countdown that every federal employee should mark on their calendar when they are hired:

• 90 Days Out: The agency begins a formal review of your fitness.

• 60 Days Out: A mandatory meeting between the employee and a certifying official to discuss "public interest" criteria.

• 30 Days Out: The "Active Certification" deadline. The agency head must sign a written statement to retain you. This statement MUST be received and processed by your local human resources office. In some agencies, only Senior Excedutive Service personnel are authorized to finalize the certification.

Warning: Under these new regulations, if the agency fails to timely sign this paperwork, even by mistake (administrative error), the DEFAULT action is automatic termination. Silence is no longer consent to retain the employee; it is automatic separation (termination).

Changes to MSPB Appeal Rights

Under 5 C.F.R. § 315.806, a probationary employee in the competitive service generally had no statutory right to appeal a termination. Previously, terminated probationary employees could, in certain circumstances, obtain jurisdiction before the MSPB for a number of reasons as we saw in early 2025 when many federal employees with decades of documented service in the federal sector were erroneously terminated under the new probationary rules. As of early 2026, there have been various legislative and executive efforts previously described) to shift these appeals. Specifically, some proposed rules (like OPM-2025-0013) have sought to move the adjudication of these narrow probationary appeals from the MSPB to OPM directly. However, the historical standards under § 315.806 remain the benchmark for determining (for now) if a case is "viable" for a Board filing. One of the most drastic proposed changes in federal personnel law and regulation involves appeal routes if things go wrong.

• MSPB Jurisdiction: The Merit Systems Protection Board (MSPB) ability to assert jurisdiction over probationary terminations under the new OPM rules is more limited and will require an even stricter jurisdictional demonstration by an employee.

• OPM Oversight: Most disputes are now handled through OPM adjudicative processes, which are significantly more limited in scope, focusing primarily on narrow claims like partisan political discrimination (ironic given the trump administration incompetence and partisanship and repeated violations of the Hatch Act).

The EEO Safety Net: Your Rights Aren’t Entirely Gone

While the new OPM regulations have, or will, significantly restricted MSPB appeal rights for probationary employees, it is a common—and dangerous—misconception that a terminated probationer has no recourse at all. Admittedly, it is a narrow venue of recourse.

Even under the 2026 rules, you still maintain your full Equal Employment Opportunity (EEO) appeal rights (as of the date of this publication).

If you believe your termination during the probationary period was motivated by discrimination—based on race, color, religion, gender (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, or genetic information—you can still challenge the agency’s decision.

Special note on the "Tacking" Exception

In 2025, the Trump administration, through the "Department of Government Efficiency" (which was both a joke and a fraud on the American taxpayers), ordered agencies to terminate employee who were erroneously classified in a probationary status, when they were legally not in a probationary status.

While not a "basis" of the termination itself, probationers can obtain jurisdiction before the MSPB by proving they are not actually "probationary" under the law. If an employee can prove this, they can bypass the restirctions at § 315.806 entirely:

• 5 U.S.C. § 7511(a)(1)(A)(ii): If a competitive service employee has completed one year of current continuous service in the same or similar positions (even if the agency "labels" them as a probationer on the SF-50), they meet the statutory definition of an "employee" and gain full MSPB appeal rights.

Why the EEO Path is Different

Unlike an MSPB appeal, which focuses on whether the agency followed "merit system principles," an EEO complaint focuses on intent and disparate treatment.

• The 45-Day Deadline: You must contact an EEO Counselor at your agency within 45 calendar days of the effective date of your termination (or the date you became aware of the discriminatory act). The MSPB statutory deadline for initiating an appeal was 30 calendar days.

• The Burden of Proof: In the "Public Interest" era, agencies may try to mask discrimination behind vague "fit" or "organizational need" arguments. However, if you can show that similarly situated employees outside of your protected class were retained while you were fired, you may have an actionable case regardless of your ability to prove agency motivation or intent to discriminate.

• Reprisal/Retaliation: If you engaged in "protected activity" (such as filing a prior grievance, requesting reasonable accommodation, or reporting harassment) and were subsequently terminated during your probation, you may be a victim of retaliation that falls under the jurisdiction of the EEOC.

• The Investigation: If you present actionable claims that comply with the dismissal rules under 29 CFR § 1614.107, the agency will accept your complaint and initiate an investiogation referred to as the Report of Investigation (ROI). This report often proves very embarrassing for agencies and can be used in a number of ways.

How to Protect Yourself

With 35 years of experience in federal personnel law, regulation, and administration, we advise every probationary employee to take the following steps:

1. UPON HIRING - Verify Your Anniversary Date: Don't wait for human resources. Know exactly when your clock runs out.

   1. Obtain a copy of your SF50 initial appointment form.

   2. Request a complete copy of all hiring documents.

   3. Maintain a copy of the vacancy announcement to which you applied.

2. Request (Schedule) Your 60-Day Meeting: If your supervisor hasn't scheduled a performance and "public interest" discussion by month eight, request it in writing.

3. Audit Your eOPF: Ensure your written certification is uploaded to your Official Personnel Folder at least 30 days before your anniversary date.

How InformedFED Can Help

Our Expertise, Your Advantage.

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

• EEO Complaints: Initiating and managing informal and formal complaint stages, including mediation, investigations, reviewing Reports of Investigation (ROI), and assisting during the hearing stage.

• Appeals (MSPB & FLRA): Providing comprehensive support for Merit Systems Protection Board appeals and Unfair Labor Practice complaints.

• Career Transitions: Expert guidance on FERS Disability Retirement applications and Reasonable Accommodation requests, reconsiderations, and appeals.

• Suitability and Security: Former Suitability Adjudicators conduct document reviews and consultations regarding background checks and SF-50 coding errors. Additionally, they prepare written responses and requests for remediation.

• Union Assistance: Our consultants collaborate closely with local union representatives and leadership to ensure unions provide the most effective representation to their members. Upon request from the local union, we will either work directly with its members or with its union representatives. Additionally, our consultants provide both small group and large group training for union training programs.

Why Federal Employees and Unions Choose InformedFED

• The Cost-Control Model: We eliminate massive upfront financial risks by offering flat-fee services and low-minimum hourly retainers, making expert support affordable even for issues where the financial recovery wouldn't justify a high-priced attorney.

• Unbundled, "A La Carte" Services: You retain control and only pay for the services you need. You can hire us for a single task—like an Initial Case Assessment (ICA)—and decide your next steps from there with no ongoing obligation.

• Unmatched Accessibility: We are the only experts available to clients 24/7, including evenings, weekends, and holidays, ensuring you never miss a critical deadline.

• Insider Knowledge: Our consultants possess decades of "internal" knowledge of agency policies and HR procedures, providing a strategic advantage during early dispute stages and settlement negotiations.

• Indirect Representation: We offer "indirect representation," allowing you to retain us for specific tasks or phases—such as writing responses or second opinions, significantly reducing costs compared to full scope legal representation.

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