Number: 

DAO 202-315

SECTION 1. PURPOSE.

.01 This Order establishes policies and procedures of the Department of Commerce (the Department) on probationary and trial periods.

.02 This Order is revised to update Department policy for compliance with the Office of Personnel Management's (OPM) regulations and removes references to the obsolete Federal Personnel Manual. In addition, this revision clarifies that the trial period for excepted service positions is two (2) years, unless a shorter period is required by regulation; adds a section on the process for terminating an employee during a probationary or trial period; requires that an individual appointed for the first time on a non-temporary basis to a supervisory or managerial position in the excepted service serve a supervisory or managerial probationary period; and provides an exception from having to serve a managerial probationary or trial period if the employee successfully completed his/her probationary or trial period as a supervisor and the exception is supported by the employee's performance and experience.

SECTION 2. SCOPE.

.01 This Order applies to:

.a Employees subject to probationary periods under 5 Code of Federal Regulations (CFR), Part 315, Subpart H; employees in the Scientific and Engineering Career Path (ZP) under the National Institute of Standards and Technology (NIST) Alternative Personnel Management System (APMS); and employees in research and development positions in the Scientific and Engineering Career Path (ZP) under the Commerce Alternative Personnel System (CAPS).

.b Employees serving under term appointments, for whom the first year of service is a trial period under 5 CFR, Part 316 (Temporary and Term Employment), Subpart C; and

c. Employees in the excepted service, including those serving a trial period under an initial appointment pending conversion to the competitive service.

.02 This Order does not apply to employees appointed under the Foreign Service Act of 1980, as amended, as they are not covered by 5 CFR, Parts 315 (Career and Career-Conditional Employment), 316, or 752 (Adverse Actions). The Foreign Service is covered in Department Administrative Order (DAO) 202-900, "Foreign Service Personnel Management" and in the Department of State's "Foreign Affairs Manual."

SECTION 3. PROBATIONARY AND TRIAL PERIODS FOR INITIAL APPOINTMENTS.

The term probationary period applies to career and career-conditional appointments in the competitive service; the term trial period applies to term appointments in the competitive service and all excepted service appointments.

.01 Definitions.

a. Probationary Period. Introductory period of employment for employees in the competitive service serving under a career or career-conditional appointment under 5 CFR, Part 315, which allows management to evaluate a new employee's performance and conduct and determine whether his/her continued employment is in the best interest of the Department.

b. Trial Period. Introductory period of employment for employees in the excepted service and employees under a term appointment in the competitive service, which allows management to evaluate a new employee's performance and conduct and determine whether his/her continued employment is in the best interest of the Department.

.02 Coverage. Each employee serving under a career/career-conditional or term appointment in the competitive service will serve a probationary or trial period prescribed by 5 CFR, Parts 315, Subpart H and Subpart I, and 5 CFR 316.304, respectively, and by this Order. Each employee serving under a career/career-conditional appointment in the excepted service will serve a two-year (2) trial period.

.03 Length.

a. Competitive Service. All probationary and trial periods (term appointments are in the competitive service yet serve a trial period) for initial appointment in the competitive service are for one (1) year, except as provided for specific occupations or under other authority or guidelines for APMS and CAPS.

The probationary or trial period for part-time employees in the competitive service is computed on the basis of calendar time in the same manner as for full-time employees. For intermittent employees (i.e., those who do not have a regularly scheduled tour of duty), each day or part of a day in a pay status counts as 1 day of credit toward the required two hundred sixty (260) days in a pay status for completion of the probationary or trial period. The probationary/trial period cannot be completed in less than 1 year of calendar time (5 CFR 315.802(d)).

b. Excepted Service. All trial periods for employees in the excepted service are for two (2) years, except for appointments where regulation requires a shorter period.

The trial period for part-time employees in the excepted service is computed on the basis of calendar time in the same manner as for full-time employees. For intermittent employees (i.e., those who do not have a regularly scheduled tour of duty), the trail period is two (2) calendar years.

.04 Responsibilities.

a. Supervisor/Manager.

1. Advise the probationary or trial period employee of his/her probationary status and the requirements for successfully completing the probationary/trial period.

2. In consultation with the Servicing Human Resources Office/Enterprise Services Center (SHRO/ESC), establish performance standards that address the organizational goals and how the employee is expected to contribute to the accomplishment of those goals.

3. Issue performance plans on a timely basis in accordance with the appropriate guidance (i.e., DAO 202-430, "Performance Management System" for General Schedule positions; the APMS Operating Manual; or the CAPS Operating Procedures Manual).

4. Evaluate and provide feedback to the employee regarding performance and conduct throughout the probationary/trial period.

5. Complete form CD-35, Probationary or Trial Period Report, during the employee's last two (2) or three (3) months of the probationary/trial period, and submit it to the SHRO/ESC.

6. Promptly contact their SHRO/ESC at any time during the probationary/trial period for advice and guidance when considering recommending that an employee not be retained.

b. Servicing Human Resources Office/Enterprise Services Center.

1. Advise supervisors/managers on performance management policy and requirements.

2. Advise applicants and selectees for positions of the requirement to serve a probationary or trial period and the consequences of failure to successfully complete this period.

3. Provide supervisors/managers with approximately sixty-day (60) advance written notice regarding the end of an employee's probationary or trial period, and provide supervisors/managers with the form CD-35, Probationary or Trial Period Report approximately 60 days prior to the end of the probationary/trial period.

4. File the completed CD-35, Probationary or Trial Period Report, for both the retention of and the non-retention of the employee, on the right side of the employee's Official Personnel Folder (OPF).

c. Employee.

1. Demonstrate fitness for the position through completion of work in accordance with the established performance plan and demonstrate proper conduct.

2. Assist in the development of the performance plan.

3. Understand performance expectations, asking clarifying questions when necessary.

4. Request additional clarification and feedback on assignments as needed.

5. Document accomplishments.

.05 End of Probationary or Trial Period.

a. For competitive service employees on a probationary or trial period, the period ends when the employee has completed his/her scheduled tour of duty on the day before the anniversary date of the employee's appointment. For example, when the employee's last workday is a Friday and the anniversary date is the following Monday, the probationary or trial employee must be separated before the end of the tour of duty on Friday, since Friday is the last day the employee actually has to demonstrate fitness or qualifications for continued employment (5 CFR 315.804(b)).

b. For excepted service employees, the two-year (2) trial period ends when the employee completes his/her scheduled tour of duty on the day before the second anniversary date of the employee's appointment.

c. For APMS and CAPS employees serving a three-year (3) probationary period, the period ends when the employee completes his/her tour of duty on the day before the third anniversary date of the employee's appointment.

.06 Terminating a Probationary or Trial Employee.

a. When a probationary or trial employee's work performance or conduct fails to demonstrate proper fitness or qualification for continued employment, the employee's services may be terminated by notifying the employee in writing of the reason for separation and the effective date of the action. At a minimum, the notice should include the conclusions on the inadequacies of the employee's performance or conduct.

b. When proposing to terminate a probationary or trial employee for reasons based in whole or in part on conditions arising before appointment, the employee must be given advance written notice stating the reason(s), specifically and in detail, for the proposed action. The employee shall be given a reasonable period of time (not more than seven (7) calendar days) to file a written response to the notice of proposed adverse action and to furnish any affidavits and/or materials in support of his/her response. If the employee responds, the response shall be considered by the deciding official in reaching a final decision on the proposed action. The decision issued by the deciding official shall be provided to the employee at or before the effective date of the termination. The decision notice shall be in writing and inform the employee of the reason(s) for the action. It will also inform the employee of his/her right of appeal to the Merit Systems Protection Board (MSPB) and the time limit within which the appeal must be submitted. Information on filing an appeal may be obtained through the MSPB website (5 CFR 315.805).

SECTION 4. PROBATIONARY PERIODS FOR INITIAL APPOINTMENTS TO SUPERVISORY OR MANAGERIAL POSITIONS.

.01 Definitions. Supervisory and managerial positions have the meaning given to them by OPM's "General Schedule Supervisory Guide."

a. Supervisor. A supervisory position involves accomplishing work through the direction of others, including Federal employees, unpaid volunteers, contractors, or others, as required.

b. Manager. A managerial position involves serving as a head or assistant head of a major organization within a secretarial office of a bureau/operating unit, or directing a specialized program of marked difficulty, responsibility, and national significance.

.02 Coverage.

a. The requirements of 5 CFR, Part 315, Subpart I, and this Order apply to:

1. All appointments/positions without time limitation in the competitive civil service; and

2. All term appointments/positions.

b. The requirements of Section 4 apply to all supervisory or managerial appointments/positions without time limitation in the excepted service.

.03 Exception.

This Section does not apply to appointments/positions in the Senior Executive Service.

.04 Basic Requirements.

a. An individual appointed for the first time on a non-temporary basis to a supervisory or managerial position must serve a supervisory or managerial probationary period. This requirement also applies to an individual previously appointed to a supervisory or managerial position requiring a probationary period that was not completed directly prior to appointment to a new supervisory or managerial position. If service in the former position was supervisory and the new position is also supervisory, the former period of service counts toward completion of the probationary period in the new supervisory position. This rule also applies when an employee is in a managerial position and is subsequently moved to a different managerial position.

b. Successful completion of a probationary period for a position that is both supervisory and managerial satisfies the requirements for both types of positions. Successful completion of a managerial probationary period satisfies the requirement for a supervisory probationary period. An exception to the managerial probationary period requirement may be granted to managers who have in the past satisfactorily completed a supervisory probationary period when such an exception is justified on the basis of performance and experience (5 CFR 315.904(b)). The request for the exception, with supporting justification, must be submitted by the employee's current supervisor to the SHRO/ESC for approval.

c. An employee serving a supervisory or managerial probationary period for the first time must complete a program of supervisory/management training course(s).

d. A supervisory probationary period is not required for temporary appointment or temporary promotions, nor for individuals exempted by 5 CFR 315.904(c) on the basis of prior service.

.05 Length. An employee is required to complete a single probationary period in a supervisory position and a single probationary period in a managerial position, regardless of the number of Federal agencies, occupations, or positions in which the employee has service. The length of the probationary period for a supervisory or managerial position is one (1) year, except as provided in paragraph 4.07f of this Order.

.06 Evaluation of Probationer's Performance. Performance requirements for probationary supervisors and managers must be set in accordance with the Performance Management System Handbook, the APMS Operating Manual, or the CAPS Operating Procedures Manual, as appropriate.

1. Under the five-level performance management system, a performance rating of Level 3 (or equivalent) or higher on all critical elements is required for retention in the supervisory or managerial position beyond the probationary period.

2. Under APMS, a performance rating of "Fully Successful" (Level 3) or higher is required on each critical element for retention in the supervisory or managerial position beyond the probationary period.

3. Under CAPS, a performance rating of"Eligible" on each critical element and an overall performance rating of "Eligible" is required for retention in the supervisory or managerial position beyond the probationary period.

.07 Documentation. The first-level supervisor/manager must complete form CD 35, Probationary or Trial Period Report, during the employee's last two (2) or three (3) months of the supervisory/managerial probationary period, and submit it to the SHRO/SSC. The supervisor will receive the form from the SHRO/SSC as a reminder approximately sixty (60) days prior to the end of the probationary period. The completed form, for both the retention of and the non-retention of the employee, must be filed on the right side of the employee's OPF. Supervisors/managers who are considering recommending that an employee not be retained should promptly contact their SHRO/SSC at any time during the probationary/trial period for advice and guidance.

Meeting the requirement for supervisory or managerial training is a necessary part of satisfactory completion of a probationary period.

.08 Failure to Complete a Supervisory or Managerial Probationary Period Satisfactorily.

a. An employee who, for reasons of supervisory or managerial performance, does not satisfactorily complete the probationary period is entitled to be assigned to a position in the agency of no lower grade/band and pay than the one the employee left to accept the supervisory or managerial position (5 CFR 315.907(a)).

b. The decision to return a probationer to a non-supervisory or non-managerial position is not grievable under DAO 202-771, Administrative Grievance Procedures. The action is also not appealable to the MSPB, unless the employee is alleging that the action was based on partisan political affiliation or marital status (5 CFR 315.908(b)).

c. The SHRO/SSC must notify the employee in writing in accordance with 5 CFR 315.907(c), that he/she is being assigned to a position of no lower grade/band and pay than the one that the employee left to accept the supervisory or managerial position, and should inform the employee that the assignment is in accordance with 5 CFR 315.907.

d. The return of a probationer to a lower-graded/banded, non-supervisory or non-managerial position for reasons other than supervisory or managerial performance (e.g., for technical performance or misconduct) is subject to the procedural requirements of 5 CFR, Part 432 (Performance Based Reduction in Grade and Removal Actions) or 752 (Adverse Actions).

e. If an employee is demoted into a supervisory or managerial position subject to probation under 5 CFR 315.904, and fails to complete the probationary period successfully for reasons of supervisory or managerial performance, the employee is entitled to be assigned to a position at the same grade/band level and pay as the position in which the employee was serving probation.

The employee is eligible for repromotion in accordance with Department promotion policy (5 CFR 315.907(b)).

f. If an employee whose supervisory or managerial performance is otherwise satisfactory fails to complete the training requirement during the one-year (1) period, the probationary period is not satisfactorily completed. Within fifteen (15) calendar days of the end of the one-year (1) period, the probationer's supervisor/manager must notify the SHRO/ESC in writing of the reasons the training was not completed and the scheduled date for completion of the training. In such cases, the probationary period is extended for one (1) additional year or until the training requirement is met, whichever is sooner.

g. The placement of an employee who does not complete the supervisory or managerial probationary period successfully is the responsibility of the bureau/operating unit that made the appointment or promotion.

h. When an employee under the General Schedule is promoted to a supervisory or managerial position and is subsequently returned to his/her former grade, the employee's pay at the lower grade must be set at the level the employee would have attained had the employee not been promoted.

i. When an employee under APMS or CAPS is promoted to a supervisory or managerial position and is then returned to his/her former band, the employee's pay will be set in accordance with the APMS Operating Manual or CAPS Operating Procedures Manual, whichever is appropriate.

.09 Crediting Service towards Completion of the Supervisory or Managerial Probationary Period.

In accordance with 5 CFR 315.906, service is creditable toward the completion of a supervisory or managerial position in the following situations:

a. An employee who is reassigned, transferred, or promoted to another supervisory or managerial position while serving a probationary period is subject to the probationary period prescribed for the new position. Service performed in the former position counts towards completion of the probationary period in the new position (5 CFR 315.906).

b. Service on detail, temporary promotion, or reassignment to another supervisory or managerial position while serving probation is creditable toward completion of probation. Service in a non-supervisory or non-managerial position is not creditable (5 CFR 315.906(b)).

c. Absence in non-pay status while on the rolls (other than for compensable injury or military duty) is creditable up to a total of twenty-two (22) workdays. Absence in a non-pay status (whether on or off the rolls) due to compensable injury or military duty is creditable in full upon restoration to Federal service. Non-pay time in excess of twenty-two (22) workdays extends the probationary period by an equal amount.

d. Service during a probationary period from which an employee was separated or demoted for a performance or conduct reason does not count toward the completion of a probationary period required under a subsequent appointment (5 CFR 315.906(d)).

e. Temporary service in a supervisory or managerial position under temporary appointment, promotion, or reassignment prior to probation is creditable if the assignment was within the Department or its bureaus/operating units and is made permanent with no break in service and without returning the employee to his/her previous non-supervisory position immediately prior to the permanent appointment. Prior service under a detail may be credited only when a detail to a supervisory or managerial position is made permanent without a break in service (5 CFR 315.906(e)).

SECTION 5. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 202-315, dated July 10, 1987, and all bureau/operating unit policy directives on probationary and trial periods.

Signed by: Director for Human Resources Management and Chief Human Capital Officer

Approved by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of Human Resources Management