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HR Insights with Ali: Following the Rules During an Employee's Probationary Period

Posted on 10/25/2017 by Ali Oromchian, Esq.
Using a probationary period can be quite beneficial both for employers and their employees. A probationary period is a timeframe during which new or existing employee receive additional training and oversight. It can be used to help new employees adjust to your practice, or to steer current employees with disciplinary or performance issues back on track. It can also be used for current employees who are transitioning into a new position or department.

There are, however, potential legal ramifications for probationary periods. This is because of the potential conflict between probationary periods and the concept of at-will employment. Most employees in the U.S. are employed under at-will standards, meaning that they can be fired at any time for any reason which does not violate the law (such as terminating a person based upon gender, race, etc.). But if an employee is working during a probationary period, she may expect that she has the entirety of that period to “learn the process,” which she may take to mean that she can make mistakes during that period without ramifications.

The best way to combat this assumption is by clearly outlining at-will employment status during the probationary period, such as via your employee handbook. Most employers do (and should) follow a progressive discipline policy, in which an employee is notified of problems with the expectation that they will be remedied. If those issues continue to occur after the specified number of warnings, then that employee can be terminated. You should follow progressive discipline policies during the probationary period, include this information your handbook, and follow these procedures for all employees.

Document all employee-related issues during the probationary period (and beyond) to support a future termination, should one become necessary. By informing your employees of your policies, and by following progressive discipline even during the probationary period, you can reduce your chances of facing an unlawful termination claim down the road.

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