Most employers have established introductory periods for their new hires. The intent of these “probationary” periods is for both the employer and employee to evaluate each other. Unfortunately, these established periods create some false ideas in the minds of both employees and employers.
Employees believe that if they make it through this introductory period, that they are basically “permanent” or can only be fired “for cause”. That’s untrue. Most states have adopted “employment-at-will” doctrines which basically say that either the employee or employer can terminate the employment relationship with or without notice and with or without cause. This means that the employee, for example, could be terminated for no other reason than s/he is wearing a purple shirt that the manager hates. While that’s an extreme example, and while it’s not generally recommended that employers rely on employment-at-will when defending decisions to terminate employees, it is important for employees to understand that, absent some type of employment agreement, employment is not guaranteed.
Employers are under the mistaken belief that if someone is in their introductory period they can be terminated without incident during that timeframe. That’s not true. A person who is terminated at any time, even those in their introductory period, can sue the company. So, for example, the orientation period doesn’t prevent the lawsuit alleging that the person was terminated because s/he complained about harassment or that s/he was terminated because the manager learned s/he was gay.
While it is important to be proactive and perhaps even escalate the disciplinary process during the introductory period, the behavior or performance that is in question still needs to be documented and addressed. Employees should never be blind-sided by a termination. They should have had adequate warning that it was coming so that when it comes time to present your defense to a jury, it will be clear that the company gave the individual an opportunity to correct the offense and did not do so.
Employers also don’t need to wait until the end of the introductory period to make a termination decision. If the person isn’t performing up to standard, document the behavior or performance issue, give him/her an opportunity to correct it and then make the decision to terminate. Depending on the nature of the performance or behavior, that could be in as little as a week or two. This is especially true if the company just made a bad hiring decision and realized the person just doesn’t have the skillset to perform the job.
You may have noticed that this new hire period was not referred to as the “probationary” period. “Probationary” is not an appropriate term to use. Not only does it have a negative, disciplinary feel and connotation, but it could be argued that once someone completes “probation” they are permanent employees. It’s recommended that employers instead use the term “introductory” or “orientation” period.
There is one circumstance where “probationary” is acceptable for the introductory period and that is within the context of some state’s unemployment laws. For example, in Florida, if someone is notified within the first 7 days of employment that they are in a probationary period, and they are subsequently terminated during the “probationary” period for poor performance, the employer’s account will not be charged if the individual qualifies for unemployment benefits. Two things of note regarding this: 1) unemployment benefits may be awarded to the individual since they were terminated for poor performance; and 2) “poor performance” is viewed differently than “misconduct” with respect to unemployment. Poor performance basically means the employee tried but just couldn’t grasp the job or perform up to our productivity standards. Misconduct generally means the person deliberately violated our policy. The employee was told about our policy, warned about the unacceptable behavior and yet continued to do it.
Finally, final rules under the Affordable Care Act (ACA) do not permit orientation periods greater than 30 days. However, you should consult with your benefits attorney or consultant to ask if you may adopt a longer orientation period as long as it doesn’t delay an employee’s opportunity to enroll in your group health benefits.
Introductory periods provide an excellet opportunity for new hires and employers to get to know each other as long as both entities understand this isn’t a “magical” period that provides any type of protection or promises to either party.
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