Probationary Period? Get Rid of It!

Yesterday’s Advisor featured legal tips about probationary periods. Today, Hunter “Please Sue Me” Lott says, “Get rid of your probationary period.” Otherwise you risk negating your employees’ at-will status.

Lott says that any “probationary period” or “introductory period” (or as one company calls it, “comfort time”) is a threat to the employer’s at-will status because it suggests that after the probationary period, employees have greater rights.

That’s not the only problem, though, Lott says. For example, the typical situation he sees is that the manager comes to HR on day 89 of the 90-day probation period and says, “I need to fire the person.”

Unfortunately says Lott, what you find, invariably, is that (a) there’s no documentation, and (b) it’s actually day 92. Whoops.

What you really want, he says, is to eliminate the probationary period entirely. Then, he says, “Your employees are on probation forever.”

BLR’s offers a more positive view of probationary periods:

The probationary period for a new employee (generally from 30 to 180 days) can be a most useful time; it can provide critical interaction between employer and employee:

  • It gives the supervisor the opportunity to assess a new worker’s performance, to provide feedback on initial work, to correct poor work habits, and to formally evaluate performance at short intervals.
  • It allows the employer to determine whether the person can get along in the company culture.
  • It may ensure that an employer doesn’t simply keep an unproductive worker, or one who arrives late, sloughs off work, or just doesn’t seem to care.

However …

Initial appointments for a probationary period should be clearly conveyed in writing to the applicant prior to employment so that the status of the employee during the probationary period is never doubtful.

How to Use the Probationary Period Effectively

It is during the probationary period that new employees decide what the job is about, how they will do it, and the mores and culture of the new organization. This is the time for the employer to not only assess performance, but to help improve it, as well as to coach the worker as to what the expected standards are and how (and how not) to reach them in this company.

Performance reviews of newly hired employees give supervisors the opportunity to evaluate new employees’ work habits, and make a reasoned decision about their future with the company.

An employer can and should deal with a poor performer who is new just as with any other at-will employee, which means evaluating the worker periodically (in a truncated fashion and at short intervals), documenting both good performance and problems. Supervisors should document every evaluation and every action, just as they would for a regular employee.

Tip: Employment beyond the probationary period should be contingent upon the satisfactory evaluation of the employee’s performance, and this idea should be clearly conveyed to the probationary employee with the caveat that failing to perform at a satisfactory level could mean either extension of the probationary period or termination.