The mass firings of probationary government workers roiling the federal government are likely illegal, a federal government oversight agency said on Monday.
The decision comes from the Office of Special Counsel, an independent agency that oversees illegal actions taken against federal workers, in a case involving six probationary government workers who were fired from their positions at six separate agencies.
That decision, issued on Friday but not disclosed until Monday, determined that “there are reasonable grounds to believe that agencies engaged in prohibited personnel practices … by terminating the employees in violation of federal laws and regulations governing probationary terminations and reductions in force.”
While the decision is limited to those six workers, its implication is that all, or nearly all, of the mass firings of probationary government workers by President Donald Trump violate the laws regulating government employment. If the decision holds, it would represent a massive setback for Trump and Department of Government Efficiency leader Elon Musk’s efforts to rapidly shrink the number of federal government employees.
OSC head Hampton Dellinger issued stay requests of 45 days for the firing of the six workers who challenged their removal to the Merit Systems Protection Board, a quasi-judicial board that hears employment complaints from federal government workers. The board has three days to rule on the stay requests. If it does not rule, then the stays go into effect.
“Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force,” Dellinger said in a statement on Monday. “Because Congress has directed that OSC ‘shall’ protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws.”
Dellinger is now seeking ways to provide action to remedy the possible unlawful firings of other probationary workers without the need for reviewing appeals on an individual basis.
The OSC’s statement “confirms what we have long known: the mass termination of federal workers is unlawful, and Trump’s only plan here seems to be to inflict chaos and suffering on the American people and the federal workers who serve them as opposed to using our government to better the lives of working Americans, families, and communities across the country,” Skye Perryman, president of Democracy Forward, the liberal nonprofit group that brought the six government workers cases before the Office of Special Counsel, said in a statement.
The mass firing of probationary government workers is part of Trump’s effort to radically reduce the size of the federal government workforce. That effort is led by billionaire Musk through DOGE. So far, at least 200,000 government workers have been fired or taken a controversial buyout offer from Musk. Most of the fired workers were probationary, which means they were in a trial period after being hired or switching into positions where they had fewer work-related protections.
In his decision, Dellinger stated that the six workers were not fired for “poor performance” but for other purposes, including “a purported lack of work, shortage of funds, and reorganization.” This violated legal procedures that must be followed when an agency engages in a reduction in force.
“There are reasonable grounds to believe that the Agencies improperly circumvented [reduction in force] regulations by terminating Complainants and other probationary employees en masse without regard to each employee’s individual performance for the purpose of restructuring government agencies and reducing costs,” Dellinger’s decision states.
This violation of the law “deprived Complainants of substantive as well as procedural rights that could allow them to keep their jobs or be reassigned to new positions and would have allowed them, at a minimum, to remain employed during the [reduction in force] process.”
Two of the firings also likely violated civil service laws that provide some protections to some probationary workers from being fired for reasons not related to their “work performance or conduct.” The emails firing these two workers did not state that they were being fired due to poor performance or conduct “and instead seem to have issued form letters to terminate probationary employees en masse,” according to the decision.
Dellinger’s decision in this case came on the same day that the Supreme Court declined to overturn a district court’s temporary restraining order blocking Trump’s decision to fire the OSC head on Feb. 7. That case is still ongoing in district court.
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Similarly, Trump fired Merit Systems Protection Board member Cathy Harris on Feb. 11 in a bid to swing the board to majority Republican control. Harris is challenging her removal in court, as the law states that board members, who are Senate-confirmed and serve seven-year terms, may only be removed for “inefficiency, neglect of duty or malfeasance in office.”
The board currently has two members — Democratic appointee Ray Limon and Republican appointee and chairman Henry Kerner. If the board approves the stay requests on the firing of the six workers, it could also grant a class action for all of the fired probationary government workers, something that Democracy Forward plans to request.