Firing an employee during the probation period is an option for an employer in many states.

What Is a Probation Period?

A probation period of employment is connected with the first months a worker is on the job. A typical probation last for three to six continuous months. A probation period is similar to a trial period where an employer watches how the employee workers. After the probation period, the employee becomes a permanent worker.

However, a probationary period of employment can occur when an employee is passed the initial trial period. For instance, if a long-term employee made a major mistake on the job, their employer may choose to place the employee on probation for a specific time instead of firing the employee outright.

A probationary period can also occur for:

  • Promotions
  • First time supervisors
  • Employees with continued poor performance    

How Does the “At-Will” Doctrine Impact Probationary Periods?

Almost all states are “at-will” employment states. This means an employer can fire an employee for any reason that does not involve discrimination. In an at-will state, an employer can fire an employee during and at the end of probation with or without cause.

What Protection Does a Probationary Employee Have?

Employment laws differ by state. However, an employee on probation has protection from being discrimination and harassment. Probationary employees also have protection against:

  • A firing that violates laws. For instance, an employee may have a legal claim after being placed on probation when their contract prohibits it.
  • Wrongful termination.
  • The firing being improperly handled. For example, the employee is not fired according to the employee handbook.

An employee may have a right to unemployment benefits depending on how long he or she worked for your business.

Should I Talk to a Lawyer about Firing an Employee?

Terminating an employee during a probationary period may result in an employment lawsuit. If you plan to fire an employee during the probation period, contact an employment attorney first. An attorney will discuss how to protect your business and avoid lawsuits while terminating probationary employees.