On What Grounds Can I Be Removed During My SES Probationary Period?

With SES retirements and resignations continuing to rise, agencies are backfilling large numbers of executive positions, many with new career senior managers who are subject to serving a one year probationary period in their newly-acquired SES jobs. Some of these new senior executives are joining SEA and a few have been in contact to talk about their status during the probationary period. Even though they may have been promoted into the SES from a General Schedule position where they had successfully completed a prior probationary period, as new career SES managers they are subject to successfully completing another one as part of demonstrating their fitness to discharge higher level executive duties and responsibilities.

One new SEA member, a long time federal career employee, and recently selected for a SES job in his agency, asked on what grounds the agency could possibly remove him from his new position during the probationary period. At the time the question was raised he was finding his new SES position particularly challenging and expressed concern that his agency might not be pleased with his progress and could possibly considering removing him based on unsatisfactory performance.

Basis for Removal of SES Probationers for Unsatisfactory Performance – Agencies use the probationary period to observe and evaluate a new SES appointee's performance as well as conduct. If the agency finds the probationer's managerial or professional/technical performance to be unsatisfactory, it should consider whether the employee can be helped via counseling, specialized training, a performance improvement plan or other remedial steps. Following, or even in lieu of these steps, the agency can choose to remove the probationer from his or her SES position during the probationary period based on what it determines to be substandard performance in the job. Removal need not be based on a formal "Unsatisfactory or Unacceptable" rating under its performance appraisal system (although such a formal rating could be used). For example, even though a probationer could be performing at a "Minimally Satisfactory" level in terms of his or her formal performance plan, the agency could still move forward with a probationary period removal based on what it considered to be inadequate performance.

Advance Notice of Removal: If the agency chooses to remove the probationer from the SES, it must provide the probationer a written notice at least one day before the effective date. The notice must, at a minimum, state the agency's conclusions regarding the inadequacies of the probationer's performance; state whether the probationer has placement rights to another position outside the SES (and, if so, identify the position to which the individual will be assigned); and state the effective date of the action.
Placement in a non-SES Position: Guaranteed placement at GS-15 or above (e.g. Senior Level) is provided to those probationers who, immediately prior to the time of appointment to the SES, held a career, career conditional or equivalent appointment in the federal service. Probationers who are not entitled to guaranteed placement may be separated entirely from federal service. The removal of a probationer from the SES for performance reasons is not appealable to the Merit Systems Protection Board.

Possible Exception – the 120 Day "Get-Acquainted" Moratorium Period: Controlling law (which seeks to prevent preemptive or arbitrary actions against career SES employees during political transition periods) prohibits the removal of an SES probationer for performance-based reasons within 120 days after an appointment of the head of the agency or within 120 days after the appointment of the career SES probationer's most immediate supervisor who is a non-career SES appointee and has the authority to remove the probationer (time spent by a non-career SES "acting" in the supervisory position does not count toward completion of the 120 day moratorium). Importantly, the moratorium does not operate to extend the probationary period. Thus, it is possible for a SES probationer against whom the agency is contemplating removal to complete the probationary period (while the moratorium is running) without being subject to a probationary-based removal action. There is an exception, however, to the moratorium rules if the agency's removal decision is based on an actual (i.e., formal) "Unsatisfactory or Unacceptable" performance rating that was given to the probationer prior to the appointment of the new agency head or non-career SES supervisor which initiated the moratorium.

What to Do During the Probationary Period: Be certain that you take advantage of opportunities for mentoring and/or coaching and that you seek feedback regarding your performance if you aren't receiving it.

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