Probationary period - To have or have not

JAlderman · June 2003

Hi All,

I've been asked to find out what the latest thinking is about probationary periods. We did away with them a few years ago, because at the time the concern was employees might think they had a permanent job if they made it through the probationary period (the implied contract issue). Also we didn't want managers to think that just because someone was still in their probationary period they could, necessarily, fire the person with impunity. But now,there is some interest in possibly reinstituting one.

I would appreciate it if you would share with me what you're company is doing (whether or not you have a probationary period and how long it is) and what you find to be the pros and cons of having one. Thanks.

lnelson · June 2003

We have an "orientation period" in order to evaluate if an applicant fits with the company. We were informed not to used the word probationary because it would imply some sort of contract if they are kept on after that time frame.
Our time frame is 90 days after that they become a regular employee and enrolled in our benefits. Our managers seem to like this because during the specified time they can monitor how the ee works with others and if they are able to keep up with our work load. Attendance issues are also reviewed.

hrbanker · June 2003

We also use a 90-day 'orientation' period. The employee is reviewed three times during that period, and it may be extended if there are a few issues with their work, but we think they will be able to correct them. We are very careful in the wording of our policies that the employment is 'at-will' both during and after the orientation period.

We have 'probation' for disciplinary reasons.

Dutch2 · June 2003

We also have eliminated the Probation Period and gone to an Orientation period lasting 90 days. The new EE is reviewed at 45 days and at 90 days. If the new EE is meeting the requirements of the job they recieve an increase in pay with the 90 day review. We make it a point to over state that we are an "at will employer" in an "at will employmnet state." If the new employee has any opportunites we use the same progressive discipline program for them as we do all other employees, except we skip the last step. We use 1. Coaching 2. Verbal, and 3. Written and we skip 4. Day off with pay. You must emphasize that due to how serious the incident is... the first step may be at any level including immediate termination.
Good luck with your decision,
Dutch2

ray a · June 2003

Me too... But, we call it a 90-day Introductory Period. We review new hires at 30, 60, and 90 days. If we keep them as employees, they are termed "Full Time" employees on their 91st day. To avoid managers firing indescriminately, they need the approval of HR - I ensure they are being fair and following the rules.

Susan Fentin MA · June 2003

Probationary periods are carry overs from the union context, where until an employee had passed the probationary period they were not members of the union and not protected by the collective bargaining agreement. We usually recommend to our clients that they call any preliminary period like this an "introductory" period, but to really avoid the conclusion that any such period would guarantee you special rights upon its completion, you need to specifically state so in your employee handbook. If your handbook is properly drafted, it will have a prominent at-will statement/contract disclaimer in the front where it can't be missed. Then later in the handbook when you describe the introductory period, you can state again that the completion of the introductory period does not create any additional rights to continued employment and that all employees, whether during or after their introductory period, are considered at-will. If you are going to have an introductory period, you should have a formal review at the end of that period in which you honestly review the employee to set standards for future performance. Your concerns are well placed. If you have any other questions, please let me know.
Susan Fentin
Associate Editor
Massachusetts Employment Law Letter
Skoler, Abbott & Presser, PC
(413) 737-4753 [email]sfentin@skoler-abbott.com[/email]

JAlderman · June 2003

Thank you all for your feedback. It is very helpful. Now I feel I have better information to take back to the managers' group so we can make a more informed decision. Thanks again.

LindaS · June 2003

We have a probationary period but only for our bargaining unit employees. As you can guess, we are unionized and the probationary period is 45 working days long. We review after 15 working days and after 30 working days. If the employee misses any time during this period, their probationary period is extended - holidays count as time missed as well and extends this period. As for non-bargaining unit, we don't have any formal policy regarding this and employees are enrolled in the benefits plan on the day they are hired, although there is a 30-day wait for LTD.

Whatever · June 2003

We are, also, unionized. Union employees have a 60 day Probationary period (contract language). The non-union employees have a 60 day orientation period. In both cases, there is no insurance coverage until the first of the month following 60 days of employment.

MrCreosote · June 2003

We got rid of probation and I'm glad we did. Here, not unionized, it was a term that was not defined and just used with different meanings depending on who was using it, most of them based on a union environment or school environment or just what images the word conjures up. It was often used in sentences that included "permanent record." Among the beliefs:

Once someone finishes probation we can't just get rid of them.
While on probation it's easy to fire someone. (regardless of documentation, tact, protected classes, disabilities, etc.)
A manager can just decide to put someone "back on probation."

And even if you have relabeled it as Introductory many managers and employees will still believe the above, no matter how many times you say otherwise. People just seem to have an unshakable belief that they know what probation is, even if you change the name. At-will statements are necessary and may provide legal cover, but they don't dispel the mistaken beliefs.

Nick Ogden · June 2003

We also use the term "orientation" period with 30-60-90 day written reviews. Thbe review is signed by both the supervisor and the employee. If the new employee has worked out, they are then termed a "regular" employee. If the procedure is followed to the letter, you won't lose if the person is let go.

Pork · June 2003

WE HAVE A 60 DAY ORIENTATION/TRAINING PERIOD IN WHICH NO BENEFITS ARE APPLIED TO THIS EMPLOYMENT ACTION PERIOD. In our state, we can "at will" terminate an employment relationship when the training or the attitude of a team player is negative or untrainable, we or the employee can call it quits. We are never relieved of the responsibility for our actions under EEOC, Title VII for the protected classes. As long as the termination is based on a failure to learn or a failed personal attitude toward the teams actions, we do not have a problem with calling it quits and canceling the emploer/employee relationship.

Our managers understand the difficulty of replacement and the loss of training time and investment in a new employee, so we use the first 3 weeks as our goal to sort out the relationships. The employee may and they have walked away after the first day, our "world of PORK work" is not for every one!

Hope this helps, yes I recommend a orientation/training period of 8 weeks (60 days). We have a set of 8 weeks of training task to be achieved, the employ is tested in written/verbal/demonstation formats each week on that weeks training objectives, with a review of last weeks failed objectives. As a result, there can be no doubt as to the training issues and attitude issues as they relate to performance issues and seperation of service conditions. You notice that we stay away from the word "fireing". The new employee will see early on that he/she is not cutting it weekly after testing and failure of an OJT program. It also allows us to defend our seperation actions. Any judge, who sees the resulting testing activities in sequence, has also agreed with us that the employee was untrainable and our decision to seperate our relationship was a right decision. The case unfolds very nicely! We win every time. It also works with longer term employees, who do not know the technical nature of the position.

PORK

JAlderman · June 2003

Hi Pork,
Thanks for responding. What is an "OJT program" and what kind of a test do you use for attitude?

AnneLa · June 2003

We have a 90 day "Introductory" period. Additionally, our employment-at-will clause is posted in about ten different areas of the employee handbook as well as on the original application that is completed prehire.

Probationary period - To have or have not

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