The IRS has fired nearly 7,000 probationary employees, claiming they were let go due to poor performance. However, an email from a top lawyer at the IRS warns that using “performance-related language” in termination letters is “a false statement” and amounts to “fraud”. The emails reveal that senior officials ignored warnings about this issue.
Senior IRS lawyer Joseph Rillotta expressed concerns that no one had taken into account the performance of the workers set to be fired. He urged removing the language from the draft termination letter, stating it was not an immaterial false statement and could improve government’s posture in litigation at the expense of employees. Despite his warnings, Rillotta’s emails went unanswered.
The IRS sent out the Feb 20 termination notice with disputed language, claiming the decision to fire workers took into account their performance. However, many had received laudatory reviews with no hint of concerns. The inspector general for the IRS began preliminary steps to investigate this matter after a person familiar with the effort told them that Rillotta’s warnings were in line with theirs.
Lawyers representing federal workers say Rillotta’s ignored warnings make it easier to prove mass firings were “arbitrary and capricious”. The emails could also help plaintiffs recover attorneys’ fees from the government. A group of labor unions, advocacy groups, and parties filed a lawsuit claiming OPM directed the probationary firings, calling them “one of the most massive employment frauds in history”.
Administration lawyers deny this claim, stating that OPM reminded agencies to use the probationary period in evaluating applicants’ continued employment. However, Judge William Alsup issued a preliminary injunction ordering several federal agencies to reinstate thousands of fired employees, saying the administration’s probationary firings were based on “a lie”. The Trump administration has appealed Alsup’s ruling.
A high-ranking Treasury Department official instructed an IRS personnel employee to identify and fire all probationary employees “based on performance”, according to an affidavit. This plan began in early February, with no review or consideration of the workers’ job performance or conduct. The IRS’s personnel office was not permitted to make any changes to the mass-termination letter.
Court filings have partially revealed how the administration chose to fire probationary workers en masse. In one case, a senior IRS employee refused to sign the mass-termination letter due to its accuracy.
Source: https://www.propublica.org/article/trump-irs-firings-doge-fraud-law-job-performance