A probationary period in an employment setting is a specific timeframe in which a new employee’s job performance is closely monitored. This is done to assess their capabilities and whether they are indeed a good fit for their position. Such periods are often referred to simply as “probation.”

These periods may vary according to the nature of the business involved. Generally speaking, a probationary period in an employment setting lasts between one and three months. The outcome of the probationary period could strongly influence the employee’s opportunities, especially in terms of raises, promotions, and/or other work positions.

The length of time in which the probationary period exists and its rules are usually defined in employee handbooks. Employee probation period rules vary from state to state, and there is no federal rule governing such periods. However, there are a few things employers should keep in mind when including a probationary period in their employee handbook:

  • You should clearly state your expectations, such as how long the period will last and what is expected to happen or change in that period;
  • Provide frequent feedback, both positive and negative, so the employee can adjust their course;
  • Provide help to the employee where they struggle;
  • Obtain feedback from the human resources department; and
  • Document and record everything related to the employee and their probationary period.

An employer may require a probationary period for various reasons. The most common examples include:

  • Newly Hired Employees: A newly hired employee may be evaluated in order to determine their skillset, how they perform on the job, and the way in which they interact with other employees;
  • Promotions or First-Time Supervisor Employees: Probationary periods may be utilized to determine whether the employee on probation qualifies for a promotion to a higher position. Additionally, employees who have recently been promoted to a supervisor position may be put on probation before they are allowed to perform more demanding tasks or exert any authority over other employees;
  • Poor Performance From Existing Employees: Employees who are demonstrating lackluster work performance may be placed on probation in order to determine exactly where they are deficient, and how to correct errors. It is imperative that employers offer help and collaborative solutions to the employee at this stage, instead of using it simply as a surveillance period before termination; and
  • Termination: Probationary periods are frequently used as grounds for determining whether termination is necessary. In such cases, the probationary period may act as a sort of last chance for the employee to improve, or as a transition period before they are officially terminated. 

What Rights Does an Employee Have During a Probationary Period? How Is At-Will Employment Associated With Probationary Periods?

At-will employment is used in employment agreements to refer to the employment status of an employee. Specifically, the term means that the employee is being hired for an indefinite period of time, and that their employer has the right to terminate them at any time without cause. Meaning, for any or no reason. However, at-will also means that the employee has the right to terminate their own employment, at any time for any or no reason. 

Any reason will be considered a legitimate basis for termination, including having no reason at all, so long as it is not illegal. An example of this would be discrimination.

It is important to note that employment on an at-will basis does not leave the employee with no rights during a probationary period. Once again, any rules concerning employee probationary periods should be contained within the employee handbook. This is for the protection of both the employee and the employer. In addition to the previous suggestions, the following measures should be taken to ensure the rights and protection of all parties involved:

  • The employee should be informed that they are on probation, and should be given the reason(s) for the probationary period;
  • A performance or evaluation plan should be developed and disclosed to the employee, as this could greatly assist the employee’s job performance if they fully understand the terms of their probation;
  • The employer should provide periodic review and feedback of their performance;
  • The employer should provide supplementary training in order to correct any sort of deficiencies in job performance; and
  • A mentor should be assigned to assist the employee in reaching the required standards.

As such, it is crucial that the employer does not utilize probation as a form of “punishment” for poor work performance. Rather, the probationary period should be used as an opportunity to increase communication and address issues in a collaborative manner.

As previously noted, a person can get fired during a probation period, if they are in an at-will employment state. However, this could open the employer to several adjacent legal issues, and should be avoided whenever possible.

What Types of Legal Issues Are Associated with Probationary Periods?

There are a few different types of legal issues associated with probationary periods. One of the most common would be wrongful termination. Wrongful or unfair termination occurs when an employee is illegally terminated from their job. Most employees are at-will employees; however, there are laws that protect employees. If an employer breaks any of these laws when terminating an employee, it would be considered wrongful termination.

If the employee were to perform poorly during a probationary period, that could be grounds for termination. It would not necessarily be considered wrongful termination if they were made aware of the fact that their job depended on their probationary performance. However, the employee may have a legal claim if the probationary period involved any violations of the law.

An example of this would be if being placed on probation violated their employment contract in some way. Another example would be if the probationary period is not handled according to company policy, as outlined in the employee handbook. In order to avoid such situations, the employer should provide the employee with documentation in support of their reasons for firing them.

Although there are no federal laws governing probationary periods specifically, probationary periods must adhere to both federal and state standards in terms of general employment issues. An example of this would be if one specific class of workers is repeatedly being placed under probation, and for no apparent reason. This could be grounds for a discrimination claim, or a harassment lawsuit. 

Do I Need a Lawyer for Concerns Regarding Probationary Periods?

If you are an employer wishing to institute an employee probationary period, you should consult with an experienced and local employment law attorney. An experienced employment law attorney will ensure you understand your state’s specific labor and employment laws, and will help you create an employee handbook that protects the legal rights of both you and your employees. Further, should an employee file a lawsuit against you, your attorney will also be able to represent you in court as needed.

If you are an employee, an employment law attorney can review any legal documents before you sign them, such as an employee handbook describing probationary periods and a proposed employment contract. An attorney will ensure that what is being asked of you is legal, and that your legal rights as an employee are being protected. If you feel you have been wrongfully terminated or are facing workplace discrimination, an attorney can also represent you in court as needed, while helping you work towards a suitable remedy.