The new OPM probationary employee rules do two things at once, and only one of them helps you.
For a little over a year, no administrative appeals process existed for terminations during a probationary or trial period (91 FR 49072). Executive Order 14284 voided subpart H of 5 CFR part 315, and OPM rescinded the subpart at 90 FR 26727 on June 24, 2025, and with that the probationary employee in the competitive service lost the narrow appeal right he had held for decades. A first-year hire at Camp Humphreys or Yokota who was terminated for a reason that had nothing to do with his work had no administrative appeal to bring, and unless his facts supported a discrimination complaint or a prohibited personnel practice, no practical route at all.
On August 3, 2026, OPM restored something. The new OPM probationary employee rules create a new part 751, they take effect on September 2, 2026, and they come attached to a second change that will cost more people their jobs than the appeal right will save: a mandatory meeting at least 60 days before the period ends, which for most people means month 10, and a written certification that keeping you serves the public interest (Streamlining Probationary and Trial Period Appeals, OPM-2025-0013, RIN 3206-AO96, 91 FR 49072).
Take the second change first – it is the one that changes daily life inside a federal office.
Post three of four in a series on the Office of Personnel Management’s August 3, 2026, final rules and what they do to federal civilian employees, at home and overseas.
What the New OPM Probationary Employee Rules Change
The Month-10 Meeting
What 5 CFR 11.5 Now Requires
New paragraphs (e) through (h) of 5 CFR 11.5 are the heart of the new OPM probationary employee rules. They build a decision gate into the end of every initial probationary or trial period (91 FR 49110–49111).
| Paragraph | Deadline | What the Rule Requires | Citation |
|---|---|---|---|
| (e) | None stated | Each agency head must designate in writing one or more officials responsible for evaluating the continued employment of probationers, and should limit the designation to officials who can assess “the needs and interests of the agency, the organizational goals of the agency or the Federal Government, and the efficiency of the service.” | 91 FR 49110–49111 |
| (f) | At least 60 days before the probationary period ends | That designated official “shall meet with the employee” to discuss performance and conduct, based in part on input from the supervisor, and to discuss whether continued employment “would advance the public interest,” the organizational goals of the agency, and the efficiency of the service. | 91 FR 49111 |
| (g) | Within the last 30 days of the probationary period | The agency head or the designated official decides whether to finalize the appointment or terminate. | 91 FR 49111 |
| (h) | Before finalizing an appointment | The official “must certify in writing that the employee’s continued employment will advance the public interest.” | 91 FR 49111 |
Read paragraph (h) the way an engineer reads a specification, and notice which way the default now runs, because nothing happens automatically at the end of the year. Somebody has to sign an affirmative statement about the public interest, with his own name on it, in an environment where signing costs him something and not signing costs him nothing. A supervisor who is unsure, or busy, or nervous about a reorganization coming in the spring, has a cheap way out.
I have spent my professional life explaining to people that silence is itself a decision – and under this rule, silence is a termination.
How to Prepare
Here is the part I want probationers to hear, because I have not seen the trade press say it once.
The rule now requires a conversation at month 10, with a named official, about whether you keep your job, and that has never existed before. Before the new OPM probationary employee rules, most probationary terminations arrived without warning in the last two weeks of the period, and the first the employee knew of any problem was the notice.
Treat that meeting the way you would treat a deposition of yourself, and prepare for it in writing.
How to prepare for your month-10 meeting
- Confirm the date your probationary period ends, and count back 60 days.
- Bring a one-page record of what you produced, what you fixed, and what your supervisor told you at midpoint feedback.
- Ask, out loud, whether the official intends to certify.
- Send a short, polite email that same afternoon summarizing what was said.
The meeting requirement is worth exactly as much as your ability to prove what happened in it.
Education is part of how I practice rather than a marketing layer sitting on top of it. This is as clean an example as I have seen in a decade: a rule that creates a moment a prepared person can use and an unprepared person will sleep straight through.
Probationary Federal Employees Appeal Rights
The Four Appealable Actions
Now come to the appeal right itself, which is where the rule either helps you or does not. New section 751.101(a) lets an employee appeal four actions to OPM:
Termination during a probationary or trial period
Assignment to a nonsupervisory or nonmanagerial position for failure to complete a supervisory probationary period
An agency’s decision not to certify continuation of the appointment
An agency’s failure to certify and finalize the appointment
Source: 91 FR 49112
That last pair matters more than it looks, because it means the certification gate at 11.5(h) is itself reviewable, and a supervisor who simply lets the clock run out has taken an appealable action rather than no action at all.
The Only Two Grounds You Can Appeal On
Then subsection (c) narrows the grounds to almost nothing.
Partisan Political Reasons or Marital Status
You may appeal a termination, a nonsupervisory reassignment, a decision not to certify, or a failure to certify, if you allege that the action “was based on partisan political reasons or marital status” (91 FR 49112). That is the entire discrimination ground.
Not race, not sex, not age, not disability, not reprisal. Those run through the Equal Employment Opportunity Commission (EEOC) and the Office of Special Counsel (OSC) under their own statutes, and subsection (e) expressly preserves them (91 FR 49112–49113).
Pre-Appointment Conditions and Notice
The second ground is procedural, and it is narrower still. If your termination is based in whole or in part on conditions arising before your appointment, you may appeal on the basis that the agency failed to give you advance written notice stating the reasons “specifically and in detail,” a reasonable time to answer in writing with supporting affidavits, or a written decision at or before the effective date informing you of the reasons and your appeal rights (91 FR 49112).
What You Cannot Appeal
Subsection (d) closes the door on everything else: “An employee may not appeal under this part any other issue not specified in paragraph (c) of this section” (91 FR 49112). Nothing else survives.
In ordinary terms, the new OPM probationary employee rules do not let you appeal because the termination was unfair, because your work was good, because the reason given was false, or because your supervisor never held the 60-day meeting.
The preamble says so about the meeting in as many words, and this is worth quoting because it will disappoint people: a failure to conduct the meeting required under 11.5(f) “is not by itself an independent basis for reversal under part 751 unless the employee also establishes one of the appealable issues identified in § 751.101(c)” (91 FR 49095).
So the meeting is mandatory, and skipping it carries no remedy on its own, and both of those things are true at the same time in the same rule
The Coverage Trap: OPM Probationary Period Excepted Service Appointments
Who Counts as an Employee Under Part 751(f)
Section 751.101(f) defines who counts as an employee for part 751, and the definition tracks who had a comparable appeal right before E.O. 14284 rather than who is a probationer today (91 FR 49113).
Four categories are covered:
Source: 91 FR 49113
The Sentence That Decides Overseas Cases
Then comes the sentence that will decide a great many overseas cases:
“Employees serving in an appointment in the excepted service outside of part 307 of this chapter are not covered under this section and, therefore, may not appeal a termination during their trial period unless otherwise entitled by statute”
91 FR 49113
Excepted service outside part 307 covers a very large share of the overseas civilian workforce. Schedule A appointments, agency-specific excepted authorities, and a range of Department of Defense positions abroad sit outside part 307, and an employee holding one of them gets the 60-day meeting and no appeal from the outcome of it.
The OPM 2-Year Probationary Period for Nonpreference Eligibles
A second trap sits alongside that one, and it is the one that catches excepted service hires overseas. Section 432.102(f)(4) excludes from performance-based action coverage a nonpreference eligible excepted service employee who has not completed two years of current continuous service in the same or similar positions in an Executive agency (91 FR 49111–49112). Two years, not one.
A nonpreference eligible in the excepted service therefore waits twice as long as his competitive service colleague sitting at the next desk before the part 432 protections reach him, and neither of them has been told this (91 FR 49111–49112).
Ask Which Service You Are In
Ask which service you are in and under what authority you were appointed. Your Standard Form 50 says it in block 34, Position Occupied, and in the legal authority blocks, and if you cannot read it, ask the servicing human resources office in writing to tell you three things:
- Your service, competitive or excepted.
- Your appointment authority, including whether it falls under part 307.
- The date your probationary or trial period ends.
NAF and AAFES Probationers Are in a Different System Altogether
Why the OPM Probationary Employee Rules Do Not Reach NAF Staff
The coverage trap described above has a second floor beneath it, and people paid from nonappropriated funds are standing on it.
New part 751 is an OPM regulation, and section 2105(c) of title 5 deems an employee paid from nonappropriated funds (NAF) of the Army and Air Force Exchange Service (AAFES), the Navy Ships Stores Program, the Navy exchanges, the Marine Corps exchanges, the Coast Guard exchanges, or another armed-forces instrumentality “conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces” to be “not an employee for the purpose of … laws administered by the Office of Personnel Management” (5 U.S.C. 2105(c), Office of the Law Revision Counsel).
Five exceptions survive: section 7204, anything title 5 specifically provides, the Fair Labor Standards Act of 1938, interchange agreements for noncompetitive movement into the competitive service, and subchapter V of chapter 63. None of them describes a part 751 appeal to OPM (5 U.S.C. 2105(c)(1)).
So the entire structure this post has spent 3,000 words on falls away. There is no 60-day meeting under section 11.5(f), no written public-interest certification under section 11.5(h), no appeal to OPM and no 30-day filing clock, because there is nothing to file and nowhere on earth to file it.
Where NAF Probationary Rights Actually Come From
A NAF probationer’s rights come from the terms of the appointment and from the Department of Defense NAF personnel system, and the relevant issuance by title is DoD Instruction 1400.25, Volume 1403, “Nonappropriated Fund (NAF) Employment,” dated 20 March 2015 with change 1 on 29 July 2025 (DoDI 1400.25 volume index, Executive Services Directorate).
The Garrison Problem
Here is the part that catches people at overseas installations. A single garrison employs appropriated-fund GS civilians, NAF employees, and contractors side by side, doing work that looks similar from the outside, and a new hire in month 11 has no reliable way to guess from the job itself which system he is in. The pay statement is the thing that answers it. Ask before month 10, not after the meeting nobody scheduled.
How the OPM Appeal Process Works, and What It Gets Right
The procedural sections of part 751 mirror the reduction-in-force (RIF) appeal subpart covered in post one of this series, and several of them are genuinely well built.
The 30-Day Filing Deadline
Section 751.102(b) sets 30 calendar days from the effective date, electronically filed, by 11:59 p.m. Eastern Time on the 30th calendar day after the effective date, with the first counted day being the day after the effective date and a rollover to the next workday when the last day falls on a Saturday, Sunday, or Federal holiday (91 FR 49113). Good cause for an untimely filing is committed to “the sole and exclusive discretion of OPM” (91 FR 49113).
That Eastern Time deadline is a live hazard in Korea and Japan, where the local calendar day runs 13 hours ahead of Washington.
Who Decides, and Who Cannot
Section 751.105(a) insulates the adjudicator from officials who participated personally and substantially in the challenged action or gave case-specific advice about it, bars material ex parte communications on the merits with a summary-and-response cure, and disqualifies any OPM employee who worked for the respondent agency in the preceding two years (91 FR 49113–49114).
Section 751.105(b) gives OPM’s own employees an administrative law judge and a deferential standard of review that OPM does not give anybody else (91 FR 49097).
What Part 751 Does Not Take Away
Section 751.101(e) preserves the EEOC, an Inspector General, the Merit Systems Protection Board, the Department of Labor Veterans’ Employment (VETS) and Training Service, and the Office of Special Counsel (91 FR 49112–49113).
It also states that “a party cannot obtain judicial review of a decision under this part,” subject to the preamble’s acknowledgment that judicial review survives where another statute independently supplies it, as in EEO matters (91 FR 49096).
What OPM Got Right, and the One Thing It Got Wrong
OPM’s Case
- Probation is a hiring tool, not tenure
- Appeals would turn year one into litigation
- More process than probationers had in June 2025
The Objection
- Discretion is not certification
- The default now runs toward termination
- Skip the meeting, terminate, no remedy
The best defense of the new OPM probationary employee rules is that a probationary period is a hiring tool and not a tenure system. The government is deciding whether to make somebody permanent; that decision is discretionary by design, and layering a full appeal onto it would convert the last year of a probation into litigation and destroy the only real look an agency gets at a new employee before the protections attach. On that view, restoring the two historic grounds and adding a mandatory face-to-face meeting is more process than probationers had in June 2025 and more than they are owed.
I accept the premise about discretion. My objection is about what OPM did with the certification requirement.
A discretionary decision and a decision that requires an affirmative written certification of the public interest are not the same thing. OPM took a process that ran on inertia toward retention and reversed the direction of the inertia, and it did that in the same document in which it declined to make the failure to hold the 60-day meeting independently remediable.
If the meeting is important enough to command, it is important enough to enforce. As drafted, an agency may skip the meeting entirely, decline to certify, and terminate, and the employee has no ground of appeal unless he can allege partisan political or marital-status discrimination.
That is the gap I would work, and I would work it through the Office of Special Counsel rather than part 751, because that is where the pressure can actually be applied. A termination that violates 11.5 is arguably a prohibited personnel practice (5 U.S.C. 2302(b)(12)).
What to Do Now: OPM Probationary Employee Rules Checklist
Five things, and the first four cost you nothing:
Know Your End Date
Find out today when your probationary or trial period ends, and put the date 60 days before that on your calendar, because that is when the meeting is due.
Know Your Service and Authority
Find out which service you are in and under what authority you were appointed, because excepted service outside part 307 means you have the meeting and no appeal, and nonpreference eligible excepted service means two years of exposure rather than one.
Prepare the Meeting in Writing
Prepare for the month-10 meeting in writing and confirm it in writing afterward, and ask directly whether the official intends to certify.
Docket 30 Days, Eastern Time
If you are terminated, docket 30 calendar days in Eastern Time from the effective date, and understand that only two grounds reach OPM: partisan political or marital-status discrimination, and a procedural failure where the termination rests on pre-appointment conditions.
Route Your Other Claims to the Right Forum
Race, sex, age, disability, and religion go to the EEOC. Whistleblower reprisal and other prohibited personnel practices go to the Office of Special Counsel. Veterans’ preference violations go to the Department of Labor Veterans’ Employment and Training Service. Section 751.101(e) does not displace those claims, or a matter before an Inspector General or the MSPB, where an independent legal basis exists, and in my view, for most probationary terminations those routes are not the backup plan but the case (91 FR 49113).
FAQs
Who Can Help an Overseas Federal Employee Evaluate a Probationary Termination?
An overseas federal employee should consult a lawyer who handles federal civilian employment actions and understands overseas appointment authorities. The lawyer should begin with the SF-50, appointment documents, termination notice, duty location, veterans’ status, and any discrimination or reprisal evidence before choosing a forum.
Who Can Review My SF-50 and Determine Whether I Have an OPM, EEOC, OSC, or VETS Claim?
A federal employment lawyer can review the SF-50 and related records to identify the proper forum. OPM covers only the narrow grounds allowed by part 751; discrimination may belong with the EEOC, prohibited personnel practices with OSC, and veterans’ preference claims with the Department of Labor’s VETS program.
Can OPM Review an Unfair Termination?
No. Unfairness, poor judgment, or a false performance assessment does not by itself create a part 751 appeal. The employee must allege one of the grounds specified in section 751.101(c).
What If the Agency Skips the Meeting?
Skipping the required meeting is not, standing alone, a basis for reversal under part 751. The employee still must establish an appealable ground, though the failure should be documented for any EEOC, OSC, or other viable claim.
Does Excepted Service Change the Appeal Right?
Yes. An initial excepted-service appointment under part 307 may be covered, but an excepted-service appointment outside part 307 is excluded unless a statute independently supplies an appeal right.
Do NAF and AAFES Employees Use This Process?
Generally, no. NAF and AAFES employees ordinarily fall outside laws administered by OPM under 5 U.S.C. 2105(c), so their rights must be determined from the appointment documents and the governing NAF personnel rules.
This post is written for general educational purposes and is not legal advice to any person or matter.
