By: Tom Jacobson, Attorney
In my 28+ years of practice as an attorney, I have reviewed countless employee handbooks and other workplace policies, and one of the most problematic areas has always been the probationary period. It’s a problem because in most cases it conflicts with “at-will” employment, which is the rule in the vast majority of workplaces.
The “probationary period” is largely a holdover from union contracts which often state that new employees are”probationary.” This typically means that those employees work on a trial basis for a stated period of time. Sometimes the contracts say that during the probationary period, employees can be discharged for any lawful reason, usually without any notice or warnings required. Sometimes they provide assurance of employment until the end of the probationary period. Almost always, those union contracts add that once the employees complete probation, they may only be dismissed for just cause and after receiving specified warnings, etc.
But today, “only 6.4 percent of private-sector workers are covered by a union’s collective bargaining agreement.” (Are Probationary Periods Passe’?, S. Overman, SHRM, Jan. 23, 2019). In other words, over 95 percent of today’s private sector employees are not covered by a union contract. Lacking some legally-recognized exception (which is rare), most of those workers are employed “at-will.”
In an at-will work environment, the employment relationship is for no particular duration, and employers and employees alike have the right to terminate their employment relationship at any time, with or without prior warnings, notice or cause. This rule applies whether a worker has been on the job for minutes or years.
Because a “probationary period” sets (or at least implies) assured terms of employment either during or after probation, it contradicts the “at-will” rule. The consequence is that employees who are on or who complete probation may gain rights to assured employment even though the intent had been to maintain an at-will workplace.
Yet, there certainly can be some advantages to using probationary periods. For example, they can be used to define some sort of introductory timeframe for a new employee. They can also be used in the disciplinary context when an employee is given a chance to improve performance. And, of course, when things get really bad, one might consider putting someone on “double-secret probation.”
To use these tools effectively without jeopardizing an intended at-will workplace:
- Call it an “introductory period” instead of a “probationary period.”
- Use a “performance improvement plan” (“PIP”) instead of putting an employee on “probation.”
- Regardless of what the time period is called, include language to preserve at-will employment.
Disclaimer: This article is for general information purposes only and is not to be interpreted or used as legal advice.