A probationary period in an employment setting is a set period of time wherein an employee’s performance is monitored closely in order to assess their capabilities. Probationary periods are often applied to new employees as a means of determining their capabilities in a new job. 

Probationary periods, or simply “probation”, may vary according to the nature of the business involved. Probation typically lasts anywhere from 1-3 months, but may be longer or shorter. The outcome of the probationary period can strongly influence the employee’s opportunities, especially with regards to raises, promotions, or other work positions. The probationary period and its rules are usually defined in employee handbooks. 

What Types of Situations Are Probationary Periods Used in?

An employer may require an employee to undergo a probationary period for various reasons, such as:

  • Newly hired employees: A promising new employee may be evaluated to determine their set of skills, how they perform, and the way that they interact with other workers. Outstanding performance may result in a permanent position with the company, or a higher pay rate.
  • Promotions or first-time supervisor employees: Probationary periods can help determine whether the worker qualifies for a promotion to a higher position. Employees who have recently been appointed as supervisors may initially be placed under probation before they are allowed to perform more demanding tasks.
  • Poor performance of existing employees: Employees who demonstrate poor performance may undergo probation in order to determine exactly where they are deficient, and how to correct errors.
  • Termination: Probationary periods are often used as grounds for determining whether termination is necessary. In this type of situation, the probationary period may act as a “last chance” for the employee to improve or as a transition period before they are finally terminated. 

What Rights Does an Employee Have During a Probationary Period?

Most employment is done on an “at-will employment” basis, which means that the employer may terminate an employment at any time for any reason, even during a probationary period. However, an at-will basis does not leave the employee with no rights during a probationary period. 

For the protection of both the employee and the employer, it is best if the following measures are taken:

  • The employee should be informed that they will be undergoing a probationary period, and should be given the reason(s) for the probation.
  • A performance or evaluation plan should be developed and disclosed to the employee if appropriate. This may actually help the employee’s performance if they understand the terms of the probationary period.
  • The employee should receive periodic review and feedback of their performance so that they know whether they are on the right track or not.
  • Supplementary training should be provided in order to correct deficiencies.
  • A mentor may be assigned to assist the employee in reaching the required standards, and input from other employees should be considered when evaluating the worker.

Thus, it is important for the employee to understand that probation is not a form of “punishment” or “time-out” for poor performance. Instead, the probationary period should be regarded as an opportunity to learn and progress as an employee.

What Types of Legal Issues Are Associated with Probationary Periods?

One of the more common legal issues involved with probationary periods is that of wrongful termination. If the employee performs very poorly during a probationary period, it could be grounds for a decision to fire the worker. 

However, the employee may have a legal claim if the probationary period involved any violations of the law, such as if being placed on probation violated their employment contract or if the probation is not handled according to company policy as outlined in the employee handbook. Therefore, the employer should provide the employee with documentation that supports their reasons for firing them if they do fire the employee after the probationary period.   

Probationary periods must conform to federal and state standards regarding general employment issues. For example, if one specific class of workers is continually being placed under probation, or is constantly being put on probation for apparently no reason, it could be grounds for a discrimination claim or harassment lawsuit. 

Do I Need a Lawyer for Concerns Regarding Probationary Periods?

If you have any questions or concerns regarding probationary periods, you may wish to speak with an employment law attorney.  Your lawyer can help determine whether a probation period was conducted properly, and whether a legal claim may be necessary in your situation.