Updated March 04, 2025 at 21:00 PM ET
The Trump administration has revised a Jan. 20 memo asking federal agencies to provide a list of all probationary employees to the Office of Personnel Management, adding a disclaimer that OPM is not directing agencies to take any specific action.
But the memo doesn't call for a reinstatement of the tens of thousands of probationary employees who have been fired. Probationary employees are typically in their first or second year on the job.
A new paragraph in the revised memo updated Tuesday merely states, "Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions."
On Tuesday afternoon, the American Federation of Government Employees, a union representing 800,000 civil servants, called on agencies to act anyway.
"Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired," wrote AFGE National President Everett Kelley in a statement.
Judge had ruled probationary firings likely violated multiple statutes
OPM issued the revised memo in part to provide clarity in light of a recent court order, an agency spokesperson confirmed, referring to last week's ruling from a federal judge in San Francisco.
U.S. District Judge William Alsup ruled that OPM had likely violated multiple statutes in ordering agencies to carry out the firings and ordered OPM to rescind the Jan. 20 memo, along with another issued Feb. 14 that asked agencies to terminate probationary employees by Feb. 17.
"No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies," Alsup wrote in his memorandum opinion.
In court last week, the Trump administration's attorney argued that OPM had merely asked agencies to carry out the firings.
"Asking is not ordering," Assistant U.S. Attorney Kelsey Helland argued.
Alsup was unconvinced, concluding at the end of the hearing that OPM had in fact ordered agencies to fire probationary employees, an act that he said was "illegal and should be stopped."
The National Science Foundation confirmed Monday that it had reinstated with back pay all 86 probationary employees it had fired "based on updated guidance from OPM and the Federal Courts."
On Tuesday, some fired staff at the Centers for Disease Control and Prevention began receiving emails stating that their letters of termination were being rescinded, according to emails reviewed by NPR and interviews with more than half a dozen sources at the agency who were not authorized to speak publicly.
OPM inserts new language about how performance is to be measured
Another modification to the Jan. 20 memo seeks to recast how probationary periods should be used.
The original Jan. 20 memo reads: "Probationary periods are an essential tool for agencies to assess employee performance and manage staffing levels."
The March 4 revision reads: "Probationary periods are an essential tool for agencies to assess employee performance and ensure that 'a probationer's conduct and performance have established that the individual will be an asset to the Government.'"
The new language echoes guidance that OPM issued in that same Feb. 14 memo, instructing agencies on how they should measure probationary employees' performance when deciding whether they should be retained.
"An employee's performance must be viewed through the current needs and best interest of the government, in light of the President's directive to dramatically reduce the size of the federal workforce," the memo reads.
In their lawsuit challenging the firings, the plaintiffs said that guidance "has no basis in law," writing, "Neither OPM nor any agency may lawfully terminate a probationary employee based on performance for reasons that have nothing to do with the employee's performance."
Alsup has scheduled another hearing in the case on March 13.
Special counsel requests relief for thousands of fired USDA employees
In a separate challenge to the Trump administration's firing of probationary employees, the Office of Special Counsel (OSC) has asked the Merit Systems Protection Board (MSPB) to issue a 45-day stay in the firing of approximately 5,900 probationary employees at the U.S. Department of Agriculture. Both the OSC and the MSPB are part of the federal government's internal system for handling employee complaints.
In his request, Special Counsel Hampton Dellinger noted that the MSPB had already last week granted temporary relief to one USDA probationary employee who received the same termination letter as a new complainant.
He continued, "OSC also has reasonable grounds to believe that USDA engaged in identical prohibited personnel practices against the other probationary employees that USDA has terminated since February 13, 2025, pursuant to the mass termination letters."
He called on the MSPB to temporarily reinstate "all other probationary employees that it has terminated since February 13, 2025 pursuant to letters stating 'The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.'"
On Tuesday, Dellinger said his office had complied with an order from the MSPB to provide the names of fired employees.
Have information you want to share about ongoing changes across the federal government? NPR's Andrea Hsu can be contacted through encrypted communications on Signal at andreahsu.08.
NPR's Pien Huang and Will Stone contributed reporting.
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