Probationary Employment and Law Fairies

A lot of employers put new-hires on “probationary periods” of an initial 90 days or 180 days. A termination falling within this period of time is something that a lot people call me up and feel is important to mention. I also I got a reminder in my e-mail today about this and thought to pass along my own take on the issue.

Unless there is a collective bargaining agreement in place, calling a given period of time a “probationary period” is window-dressing upon the default of “at-will employment.” Certainly in California and Oregon, an employment relationship is presumed to be at-will, meaning either party can terminate the relationship at any time, for no reason. Employers are regulated to not terminate the relationship for a specified list of bad reasons (discrimination and retaliation being chief among them), but there doesn’t have to be any reason to end the relationship at all.

If a part of you is emotionally resisting this notion — that there is no such thing as a “probationary period” — take a moment and ask yourself “What changes on day 91?” If it has to do with why an employer can or cannot discipline or fire an employee, then please re-think where you’re coming from. (Again, unless you’re in a collective bargaining situation.) The Employment Law Fairy doesn’t magically appear, wave her sparkly crystal wand, and alter the terms and conditions of the employment relationship as though by magic. Unless there is operative black-letter law that says something changes after 90 days of employment (and there basically isn’t) the same terms and conditions govern at all times.

The laws specifying bad reasons for termination do not take notice of the existence of probationary periods. If you think about it for a moment, that makes sense. Anti-discrimination laws don’t have a 90-day waiting period before they take effect. A company firing an employee because the decision-maker doesn’t like people of that race is just as wrong on Day 2 of their employment relationship as it is on Day 200 or Day 20,000.

It may be useful for HR purposes to designate a period of time to set employee and employer expectations. For instance, “We don’t expect you to know how to do your job on day 1, but we do expect you to do know all the basics by day 91,” is certainly within the realm of what I’d call a reasonable sort of thing to tell many new employees, much of the time. It’s good to orient and train new employes. But there’s no change in that employee’s legal status that happens on the 90th day; a termination on day 89 is governed by the same laws as a termination on day 91. Attaching a label of “probationary period” to those first 90 days doesn’t change anything from my point of view. There are some exceptions, like sick leave and FMLA/OFLA/CFRA eligibility. But again, the timing for counting up those days until delayed-eligibility benefits kick in begins on day 1, not day 91.

90 days or 180 days is used by some employers as a basis for eligibility for certain kinds of benefits, depending on the benefit structure. You can do performance reviews at specified benchmarks of employment too. And all of this may be useful depending on how you want to manage your employees — and how they want to be managed, which is a little-discussed piece of the puzzle that maybe I’ll offer more thoughts about in the future.

Now, if there’s a collective bargaining agreement that uses a probationary period for certain things, that’s fine; what that can or can’t reach is the subject of an intricate body of labor law that I’m not prepared to address right here. What I am prepared to say is: from the law’s perspective, there is no such thing as a 90-day probationary period of employment. For most things, the law takes full effect the moment hiring takes place.

I encourage employers to set fair and reasonable expectations for new employees, to communicate those expectations clearly, and to follow through on using those expectations as was discussed. At the same time, I also encourage them to realize that the law applies from day 1, and they need to comply with the law at all times, not just after 90 days have passed.