What Is a Probation Period?
As previously mentioned, the probation period is the initial window of time that a company creates to determine whether to retain or to terminate a newly hired employee. In most cases, employers set the standard probation period as lasting for the employee’s first 4 to 6 months after they are initially hired.
In other words, a probation period is essentially a trial run that provides insight to an employer regarding how their new employee operates and interacts with the rest of their colleagues and supervisors. After the probation period has ended, however, the employee may be considered a permanent worker. At the end of the probation period, benefits such as an employee’s health insurance and 401k plans may be activated.
An employee’s probation period may be extended for longer than the length of time that they were originally told by their employer. For instance, the probation period for an employee may extend past the time of the initial trial period when a newly hired full-time or salaried employee exhibits a performance deficiency in the course of fulfilling their basic job responsibilities.
In such a scenario, an employer may decide to place the employee on a longer probation period for a specified length of time, as opposed to firing the new employee. This gives the employee a chance to resolve the issue and may work in their favor since it can prove to their new bosses that they are able to fix their mistakes when given the opportunity.
Some other examples of when a worker may need to undergo a trial or a probation period include the following situations:
- A worker is about to receive a promotion or a raise;
- The worker is assigned to a new supervisor, or alternatively, the worker becomes a supervisor for the first time;
- An employee continues to engage in insubordinate activities, to perform poorly at work, and/or to produce work product that is of a lower quality than what is expected of them or is required to fulfill the job duties for a particular role.
Evidence/Documents: Employers should always maintain records of an initial employment agreement, performance evaluations, feedback provided to the employee, any disciplinary actions taken, and documentation of any extensions to the probationary period. Clear and consistent documentation is essential to support any employment decisions made during or after a probation period.
Consulting with an employment attorney can help ensure that all necessary documentation is properly maintained.
How Does the “At-Will” Doctrine Impact Probationary Periods?
Every state in the country recognizes the doctrine of “at-will” employment. This means that both an employer and an employee have a right to terminate the employment relationship at any time and for any reason or for no reason at all. It also means that an employer may not be allowed to fire an at-will employee after the probationary period has ended without a reason.
However, this all depends on whether the employee has a contract that provides that their employment may only be terminated for specified reasons at specified times or whether a court would find an implied contract in the circumstances of a person’s employment.
It should also be noted, however, that just because a worker is hired on an at-will basis, it does not mean that they are barred from exercising their legal rights during the probationary period. For example, an employer should inform a probationary worker as to why they are being put on probation, the length of time that the probationary period lasts, and how their work performance is to be evaluated.
Process/Steps: Employers should also document performance issues, including specific examples and the dates when performance deficiencies are noted. Regular feedback and opportunities for improvement should also be provided to the employee. Clear documentation helps protect the employer from potential legal challenges.
What Protection Does a Probationary Employee Have?
The laws regarding probationary periods may be different in different states. Employers may also include their own policies when it comes to creating probationary periods, so long as they are considered to be legally valid under the relevant employment laws. However, there are certain protections that are afforded to all newly hired employees undergoing a probation period.
For instance, as is the case with any worker, employees who are in their probation period are protected by federal law harassment and employment discrimination in the workplace.
This means that a worker cannot be terminated from their probation period for a discriminatory reason, e.g. one based on gender, religion or race. This means that a worker in a probation period cannot be harassed by their supervisor or other employees in the workplace, sexually or otherwise.
An employee may also have a right to receive certain employment benefits depending on how long they were employed by a company and how long their probation period lasted. For example, if an employee on probation worked the necessary number of hours required to claim unemployment benefits under the program in their state, they may be able to receive unemployment compensation if they are laid off.
In addition, an employee on probation will also have protection against acts of wrongful termination and/or being fired in a manner that violates the law. For instance, an employee may be able to sue an employer if they are placed on probation, but the terms of their contract forbid it.
An employee may also bring a lawsuit against an employer whose actions violate company policy. For example, if the employer fires a probationary employee in a way that contradicts the rules and procedures laid out in their corporate policies or an employee handbook, the employer may be liable for damages.
One important protection that a probationary employee may be entitled to is the right to file a lawsuit against an employer for wrongful or unlawful termination. For example, it is illegal to terminate a worker for participating in whistleblowing activities or in retaliation for complaining about an employer’s lack of regard for the safety and well-being of their workers.
Costs/Fees: There may be costs associated with probationary periods, such as the cost of providing additional training, increased supervision, and administrative overhead for performance evaluations and documentation.
There may also be indirect costs related to potential turnover if probationary employees do not meet expectations. An employer might negotiate the departure of an employee who does not pass probation and make a severance payment in order to head off possible litigation.
A thorough cost-benefit analysis can help employers determine the financial implications of using probationary periods.
Risks/Penalties: There are other possible risks to firing a probationary employee in violation of the employer’s probation policy. The employee can sue for wrongful termination, as noted above, or for breach of contract, express or implied. The employer may be liable for back pay, lost benefits, compensatory damages, and punitive damages.
Employers may also be required to pay the employee’s legal fees. The specific amounts would depend on the applicable state and federal laws, as well as the specific circumstances of the case.
The Importance of Hiring a Lawyer: Consulting with an employment attorney can help assess these potential risks and penalties of a probationary employment situation. An employer might handle minor probationary period issues without a lawyer if they have a clear, well-documented company policy, the termination is for a legitimate, non-discriminatory reason, and the employee does not dispute the termination.
Even in these situations, however, consulting with an attorney is advisable to ensure compliance with all applicable laws and regulations. It is probably best to get the help of a qualified attorney in complex situations or those that threaten potential legal disputes. And the best time to consult an attorney is when an employer establishes their policies and procedures. With good legal advice, they can formulate policies and procedures that will head off lawsuits.
Should I Talk to a Lawyer about Firing an Employee?
If you are an employer who is planning on implementing a probationary period for new hires at your company, then it may be in your best interest to consult an experienced wrongful termination attorney.
Alternatively, if you intend to fire an employee either during or after their probationary period is over, you should absolutely speak to a local employment law attorney before you take any further actions that may potentially result in an employment lawsuit.
A qualified employment law attorney can make sure that you understand your rights and legal obligations under the labor and employment laws in your state. Your attorney can also assist you in drafting company policies and employee-related documents, such as a company handbook, that incorporate legal protections and procedures to comply with for both you and your employees.
In addition, if you fire an employee and that employee decides to sue you in court, your attorney will also be able to provide legal representation in court or at any legal proceedings related to the employment matter at issue.
On the other hand, you may want to hire an employment law attorney in your area if you are a newly hired employee and require help with reviewing employment documents like the terms associated with an employer’s probation period or an employment agreement. Your attorney can ensure that the guidelines set for your probationary period are legally permissible and fair.
Your attorney can also help to guarantee that your legal rights as a worker are receiving full protection under the laws in your jurisdiction. Additionally, your attorney will be able to assist you in filing the necessary legal forms and documents required to bring a lawsuit against your employer if you believe you were wrongfully terminated from your job.
Finally, your attorney will also be able to provide legal representation both during court hearings as well as at meetings or negotiations that are related to your case and conducted outside of a courtroom.
