Fired workers seek corrected employment records from feds

SAN FRANCISCO (CN) — A coalition of plaintiffs suing the federal government over the mass firing of thousands of probationary federal workers argued Thursday that a federal judge should grant them summary judgment and order “corrective actions” to remedy the effects of the terminations.

In a hearing before Senior U.S. District Judge William Alsup, a group of unions, nonprofit organizations and the state of Washington argued that the administrative record compiled by the Office of Personnel Management (OPM) unlawfully ordered federal agencies to terminate all probationary employees on the pretext of poor job performance.

“OPM’s arguments on the merits all depend on the argument that OPM only provided guidance; in fact, the administrative record they provided was clear that OPM was directing other agencies,” Eileen Goldsmith of Altshuler Berzon, an attorney for the plaintiffs, said. “The administrative record contains statements and exchanges that provide the context to show that what OPM was doing was making one demand after another.”

In contrast, the government insisted that OPM only provided guidance to federal agencies and did not issue any “mandatory” directives or orders to the agencies to terminate their probationary employees. The plaintiffs claim that OPM offered more than just guidance because it set up an exemption process that forced agencies to get the office’s permission to keep probationary employees.

Goldsmith highlighted two email exchanges, one from the National Transportation Safety Board and another from the Department of Justice, “begging” OPM to exempt their probationary employees from termination.

“OPM is directing agencies to defend anyone they want to retain … if an agency wants to not terminate a group of employees, they had to defend that decision to OPM,” she said.

Assistant U.S. Attorney Kelsey Helland pointed out that the administrative record never used the word “mandatory,” and that the directives included language such as “please do this and “we have asked you to do this.”

“All of this is framed as guidance, advice, and all is consistent with OPM’s statutory role in advising the president and aligning agency HR strategies,” he said.

Probationary employment is a chance for employees to demonstrate their qualifications, Goldsmith said, and they can only be terminated for performance or conduct reasons — not just because the government wants to reduce headcount. She added that terminated employees must receive written notice with the reason they are being terminated. Instead, she noted, OPM told agencies to send template termination letters.

In addition to the plaintiffs’ request for summary and declaratory judgment, Goldsmith asked the court to order agencies to amend terminated probationary employees’ personnel records — which still say that the employees were terminated for performance reasons — and issue correction letters in accordance with an April 18 preliminary injunction.

In the order, Alsup barred OPM from issuing any further orders that tell other agencies to fire their employees, and told agencies to provide any employee falsely fired for performance with a notice that their dismissal was instead part of a government-wide mass termination effort.

The judge raised concern about the language of the government’s letters, specifically the wording that the agency is appealing the preliminary injunction and believes it to be “both legally and factually erroneous.”

“What concerns me is in five, six, 10 years, these employees may try to get employment and have to say they were terminated, and this letter says they are appealing, they don’t agree,” the Bill Clinton appointee said. “Put yourself in the position of the poor employee in 10 years trying to explain that they were not fired for cause."

Helland responded: “That employee would have basis through this letter and the record that they were subject to termination consideration with the presidential executive order and administration’s decision when it came to power this year that certain types of probationary employees should not be retained.”

In the government’s main argument, Helland asserted that the plaintiffs have no standing over the terminations because the Supreme Court rejected any reinstatement of the employees in April. He said that there were more appropriate avenues for unions to file grievances over terminations, such as the Federal Labor Relations Authority, pushing back on Alsup’s prior finding that it was likely futile for workers and unions to appeal firings to the Merit Systems Protection Board and FLRA because of recent political chaos at the agencies, saying he “mistook the facts.”

However, when Alsup asked if the FLRA was fully functional, he answered that he knew the agency was receiving claims, but he was not sure if it was hearing claims.

“The president and administration got into those agencies, and there may be one or two people left. They are no way set up to adjudicate hundreds of claims,” Alsup said. “Be honest with me here. Isn’t that the statute here? Do these agencies only exist in name?”

In the first hearing in the matter in February, Alsup granted the plaintiffs a temporary restraining order and said the mass firings were likely illegal, and that the office has no authority to order agencies to hire or fire employees. He found that the OPM could only give guidance, and that the government’s argument that it was “merely giving guidance” could easily be seen as an order by the agencies.

The case made it all the way to the Supreme Court — which granted Trump an emergency pause to the reinstatement of thousands of terminated probationary federal employees — before returning to Alsup’s San Francisco courtroom in April, where he ruled that federal probationary employees still have standing, despite the Supreme Court’s decision.

Alsup did not say when he would issue a decision. Representatives for the government declined to comment. Attorneys for the plaintiffs did not immediately respond to a request for comment.

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