The concept of a “probationary period” at the start of employment derives from the Union context, where new employees are given a certain period before they are covered under the Company’s cba (collective bargaining agreement). There, it makes sense. After that probationary period, the Company must start making contributions under the cba, and at the same time, rules impacting termination take effect. At that point, the cba generally provides the grounds under which a union employee can be fired and the protocols if the employee challenges a termination or has a grievance about their working conditions.
In the union setting, it is appropriate to have this 90 day or so window where the Company may terminate before all the other parameters of the cba kick in and while the employee is still technically “at-will.” Rules for certain government employers may also work this way.
But what about the rest of you, private employers who are not covered by a cba? Why do you cling to these 90-day special periods of time? Some employers think they can terminate these employees easier, and that having these dedicated “periods” at the start of employment somehow gives them a hall pass to terminate these employees without the threat of a lawsuit. Or maybe that having a probationary period means not having to pay unemployment insurance?
But none of that is correct. Not only do probationary periods afford employers zero protection in which to terminate employees; they can be dangerous.
First, and the most obvious issue, most employers take every precaution in employee handbooks and hiring materials to establish that they are an at-will employer, unlike unionized or some government employers. And if they are, then those employees are at-will on that 91st day and 92nd day and beyond, just as they were during the first 90 days. But telling them that they have cleared some “magic hurdle” at 91 days gives employees the sense that they have “made it,” and now those employees REALLY NEED good grounds to be fired. Probationary periods can in fact be used by opposing counsel to negate at-will employment.
But even more important than the message it sends to employees is the wrong message it sends to managers and supervisors. They all assume that they get to fire employees during this probationary period without repercussion. NO! All the protections that employment law affords from statutes and case law apply to employees from DAY ONE! Indeed, most of the statutory protections that prohibit discrimination apply to APPLICANTS, even before these employees are hired. Not to mention all the wage and hour laws always apply, and which, let’s face it, give us most of our lawsuits these days. It is not uncommon that our PAGA and class action lawsuits are led by employees who have only worked for a few weeks or even a few days.
What DO probationary periods do? They make employers lazy. They provide a false sense of security, allowing employers to think they do not need any reason for termination during this magic period. As a result, they often fail to provide one. And out goes that employee who just happened to tell her manager she was pregnant two days before she was fired. Or say goodbye to that employee who reported a work-related injury last week. Or what about the employee who claims, after termination, that they were really terminated for complaining that they failed to get a rest break. Your response is inevitably “that never happened,” or “that isn’t why we terminated them!” No, you fired them because they were late 10 times in their first three weeks. Or they weren’t catching on to the job requirements as quickly as others. Or they swore at a customer and got you a bad Yelp review. All of these are appropriate reasons to terminate, and most likely without a prior warning (because they ARE so new). Only, you failed to tell any of these employees the real reason for the termination. You simply told them they didn’t clear the probationary period or didn’t “work out.” AAARRGGHH! Now, post termination, facing a lawsuit, any story you tell looks fabricated.
But what if you want to have a review at 90 days? GREAT! Early employment evaluations are wonderful. They are called “90 day “or “new employee” reviews. And what about a “waiting period for benefits?” Of course. Many state laws, including California, provide that employees can start using their sick leave at 90 days. Problem is, how many of you wait the same 90 days for health insurance? Most employers provide it at 30 or 60 days now. And for many, vacation starts accruing from day one, but you have a window where employees can’t yet use it. Sometimes that is the first six months or even a year. So, even your waiting periods don’t all align. Which is fine. That is why we designate them separately within each policy.
Here’s another one – often employers wait the full 90 days to term a failing new employee, especially if they have a “probationary period.” But don’t wait for 90 days if a new employee looks like a bad hire from the start. I always advocate for ending a bad relationship early and allowing both parties to find a better fit faster. But even then, still communicate the reason for your decision. Remember, all employees and job applicants fall into many protected categories under federal and state law.
More importantly, employees deserve to know why they are losing a job, even a short term one. You would want to know. And if no one tells them a reason, they get angry. And if they are angry, they go to lawyers, who start asking them questions about . . . wage and hour issues, the issues we see most often in lawsuits. So put that reason for termination in writing. Remember my favorite saying – if it’s not in writing, it didn’t happen. Tell employees why you are parting ways and memorialize it. This rule holds even for very short-term employees. Then, when these employees request a copy of their files, which they all seem to do these days, your file will tell the story. And any potential attorney will read that story before they file that lawsuit. And when they hear that version of events in YOUR words, sometimes they don’t file that lawsuit.
Train your managers to drop the concept of “probationary periods” and strike it from their vernacular and yours. If we prepare your handbook, It’s not in there. I promise.
