EO 14284 makes probation end in termination by default

Executive Order 14284, signed 24 April 2025, rewrites how federal probationary periods end.¹ Issued under 5 U.S.C. 3301 and 3302, it adds a new Civil Service Rule XI governing probationary periods in the competitive service and trial periods in the excepted service, and supersedes subpart H of 5 CFR part 315.¹²

1. The default flips. Under Rule 11.5(a), “[i]f not terminated sooner, an employee’s service terminates before the end of the tour of duty on the last day of their probationary or trial period unless their agency certifies within the 30 days prior to that date that finalizing their appointment advances the public interest.”¹ Silence used to confer tenure; now silence ends the appointment. The order is explicit about the mechanics, giving its own worked example: “when the last workday is a Friday and the anniversary date is the following Monday, a probationer will be separated before the end of the tour of duty on Friday if their agency does not make the requisite certification.”¹ The stated warrant is a Merit Systems Protection Board report from 2005, which the order quotes for the recommendation that there be “procedures so that a probationer does not automatically become an employee in the absence of agency action,” and that absent certification “the probationer’s employment should automatically terminate upon the expiration of the probationary period.”¹³

2. The burden sits with the employee and the judgement sits with the agency. Rule 11.5(c) provides that an employee on probation “bears the burden of demonstrating why their continuation in employment through the finalization of their appointment to the Federal service is in the public interest.”¹ In deciding, the agency head “may consider, in his or her sole and exclusive discretion,” the employee’s performance and conduct, “the needs and interests of the agency,” whether continued employment “would advance organizational goals,” and whether it “would advance the efficiency of the service.”¹ Where an agency simply misses the deadline, the remedy runs through the employer: if the certification fails “due to an administrative error, the agency head may petition the Director of OPM within 30 days from the date of termination to reinstate the employee.”¹ The employee has no corresponding route under the rule.

3. The regulation is switched off before the rule switching it off exists. Section 4(a) states that the order supersedes subpart H, “which is hereby rendered inoperative and without effect,” and that “[n]o agency shall give force or effect to its provisions.”¹ Section 4(b) then directs the Director of OPM to “within 30 days of the date of this order prepare and publish a rule rescinding subpart H and making conforming amendments.”¹ The rulemaking is therefore conforming the books to a change already declared effective, not deliberating whether to make it. The order gives its reasons for treating subpart H as dispensable: its provisions “are not statutorily required, place undue burdens on agencies in terminating probationary employees, and deter managers from undertaking that effort.”¹ Section 2 separately repeals Civil Service Rule 2.4.¹

4. Rule 11.6 is where the appeals architecture comes from. It provides that “[t]he Director of OPM may by regulation prescribe circumstances under and procedures by which employees terminated from a probationary or trial period may appeal such termination,” and that “[e]xcept as otherwise required by law, such appeals shall be the sole and exclusive means of appealing terminations during probationary or trial periods.”¹ That sentence delegates to OPM the power to define, by regulation, both the circumstances and the procedures for any such appeal, and to make that route exclusive.¹⁴ The order takes effect immediately except for sections 5(b) through 5(d) and Rule 11.5 itself, which become effective ninety days from signature, on 23 July 2025.¹