Probationary attendance

Ruskanen · December 2001

Is it true that you don't have to have a written attendace policy for probationary employees, and that if you have one, whether to actually term the employee or not can be up to the supervisors's discretion?

I work for a manufacturing company. At a recent supervisor's meeting some vocal supervisors decided that our attendance policy for probationary plant employees was too lenient. So, it was stated (loosely) that probationary employees would get one absence or tardy, then they would be advised that they would be terminated if they were late/absent again. OR, it would be up to the supervisor's discretion if they wanted to keep the employee in spite of their attendance record. Because we don't have anything in writing, and everyone interpreted this in their own way, we have plant employees who were termed after being gone one time, or after two and a half times. I'd like to get something in writing and have the policy apply to everyone equally across the board. The Plant Manager is saying that we don't have to have an attendance policy in writing for probationary employees nor do we have to treat everyone the same, and while an employee is in their probationary period we can fire them whenever we want. Is that right?

Theresa Gegen TX · December 2001

A probationary employee has the same rights not to be discriminated against as any other employees.

That doesn't mean that probationary employees can't be held to a higher standard -- they can be. It is perfectly acceptable for an employer to consider the fact that an employee has been working at the company a while in determining whether to discipline or terminate.

However, all probationary employees should be treated equally to each other.

For example, if one probationary employee (say a female) gets fired after one absense, and another probationary employee (say a male) is allowed two or three absenses, the female could sue the employer for sex discrimination. This would be a hard case to defend, and the defense of a different supervisor would seem a bit weak.

So in dealing with probationary employees, the employer needs to make sure that discipline is consistant. Attendance requirements should be the same across the board for probationary employees.

Generally speaking, you can probably fire any employee at will (unless you have a union agreement or contract which will require good cause) so long as you don't fire them for an illegal reason. The same "illegal reasons" apply whether or not the employee is called a "probationary employee."

Good Luck

Theresa Gegen
Texas Employment Law Letter

Down_the_Middle · December 2001

Consistency is the primary issue here, w/o regard to whether the employee is probationary or not. You're obligation s/b to ensure that the "policy" is administered even-handedly by all mgt staff and applies to all employees on an equal basis. The risk of being accused for discriminatory practices, it seems to me, is pretty large if you permit the type of discretionary judgment to continue.

Gillian · December 2001

The responses are both correct. There is a general presumption, although incorrect, that the probationary period has some sort of legal standing. It doesn't and, in my opinion, is nothing more than an ingrained tradition, so ingrained that managers and employees alike think that there is something special about it - managers like yours who think that they can do anything during the period and employees who think that managers have the right to do anything during the period.

Gar · December 2001

We're a local government and we have a written policy that specifically states that probationary employees (6 to 9 months on the payroll) can be dismissed or demoted for any reason except an unlawful one (race, gender, age, etc.). We routinely do so and we've survived numerous challenges.

Theresa Gegen TX · December 2001

The term probationary period is overused.

For an at will employer, the employee is at will the whole time. So the purpose of probationary is to take a good look at the employee and see if it is a good fit. Usually, an employer will have a face to face review at the end of the probationary period, and terminate the employee if it is not working out.

For a union employer, or an employer with employees that have job rights (like the government), the probationary period is much more meaningful, because the "good cause" termination rights don't attach until after the probationary period.

However, a probationary period is not a "free for all" for the employer. The employee still cannot be terminated for an illegal reason.

Good luck

Rockie · December 2001

I agtee the term "probationary" is not a good term to use. We struck this from our handbook, policies, etc. The rationale is that it could be construed as an implied contract in an employment at will state. For example, if an employee works three months, then he or she has passed "probation" and they are now deemed a "permanent" (another bad word) employee. There have been numerous court cases brought because of the terminology "probationary".

Margaret Morford · December 2001

I think that you need good disclaimer language in your handbook to insure that you do not create a contract of employment with any employee, probationary or not. However, I do believe that there is value in having an "introductory period" for all employees where they are held to a higher standard of conduct, particularly in the area of attendance. Everyone knows that the first 90 days of employment are the "best behavior" window. If they are already exhibiting problems, an "introductory period" is the best time to terminate if it is clear you have made a selection mistake. Long term, teach managers how to hire well so that you do not have to terminate employees.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

bsa · December 2001

We use "introductory period" for the first 90-days, then do a 90-day review with a decision whether to retain for full-time employment. Sometimes decisions to terminate occur before the 90-days is complete. Our primary reason for using 90-days is to limit the amount of unemployment tax liability we might incur if the person is terminated. Also, benefits aren't offered until the 90-days is almost complete to save administrative costs. I works for us.

Theresa Gegen TX · December 2001

A lot of employers also call it an "orientation period".

The problem with a "probationary period" is that so many managers believe that it is a free for all. The goals for the introductory or orientation period should be clearly spelled out to managment. I also agree that a short period of 90 days is plenty for most jobs.

Gillian · December 2001

With all due respect to everyone, it is all semantics. Whether probationary, introduction or orientation periods, they all mean the same thing - a period of time to evaluate, from both sides. The implication of something "permanent" after a probationary period doesn't change by using different words and it doesn't change the feelings of managers and employees about what the period of time means. I like "introductory" best, though.

Theresa Gegen TX · December 2001

I agree it is semantics,but I also think that many managers have preconceived notions about "probationary status", which they don't necessarily have about an introdutory status or an orientation period. The preconceived notion is that "your on probation, so I can do whatever I want with you, and you have no rights" (kinda like a cop dealing with a criminal on probation). And I believe that changing terms can help get around that preconceived notion.

Probationary attendance

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