Firing an Employee during the Probation Period

In general, the employment laws in many states as well as the guidelines in company policies allow an employer to fire an employee during the first 90 days of employment at a new company. This window is known as the probation period and may extend as far as up to 180 days or six full months.

What Is a Probation Period?

As previously mentioned, the probation period is the initial window of time that a company has to determine whether to retain or to terminate a newly hired employee. In most cases, the standard probation period will last from anywhere between the first three to six months after a worker is hired and has started working at a company.

In other words, a probation period is essentially a trial run that provides insight to an employer regarding how their new employee operates and interacts with the rest of their colleagues and/or supervisors. After the probation period has ended, however, the employee will be considered to be a permanent worker. Thus, benefits like an employee’s health insurance and 401k plans may be activated as well once the probation period is completed.

There are some exceptions wherein an employee’s probation period may be extended for longer than the length of time that they were originally told by their employer. For instance, the probation period for an employee may extend past the time of the initial trial period when a newly hired full time or salaried employee makes a major mistake while performing their basic job duties.

In such a scenario, an employer may decide to place the employee on a longer probation period for a specified length of time, as opposed to outright firing the new employee. This will give the employee a chance to resolve the issue and may work in their favor since it can prove to their new bosses that they are able to fix their mistakes when given the opportunity.

Some other examples of when a worker may need to undergo a trial or a probation period include when:

• A worker is about to receive a promotion or a raise;
• The worker is assigned to a new supervisor, or alternatively, the worker is being given the responsibility of becoming a supervisor for the first time; and
• An employee continues to engage in insubordinate activities, to perform poorly at work, and/or to produce work products that are of a lower quality than what is expected of them or is required to fulfill the job duties for a particular role.

How Does the “At-Will” Doctrine Impact Probationary Periods?

Almost every state in the country recognizes the doctrine of “at-will” employment. This means that both the employer and an employee have a right to terminate their professional relationship at any time and for any reason or no reason at all. It also means that an employer will be allowed to fire an at-will employee during or after the probationary period has ended and they will not be required to provide a reason for doing so.

It should be noted, however, that just because a worker is hired on an at-will basis does not mean that they will be barred from exercising their legal rights during the probationary period. For example, an employer will still need to inform a probationary worker as to why they are being put on probation, the length of time that the probationary period will last for, and how they will be evaluated on their work performance.

What Protection Does a Probationary Employee Have?

The laws regarding probationary periods will often vary widely from state to state. Employers may also include their own policies when it comes to creating probationary periods, so long as they are considered to be legally valid under the relevant employment laws. However, there are certain protections that will be afforded to all newly hired employees undergoing their probationary period.

For instance, as is the case with any worker, employees who are in their probationary period have a right to be protected from harassment and employment discrimination in the workplace.

This means that a worker cannot be terminated from their probationary period simply because of their religion or race. It also means that a worker in a probation period cannot be harassed by their supervisor or other employees in the workplace, sexually or otherwise.

An employee may also have a right to receive certain employment benefits depending on how long they were employed by a company and how long their probationary period lasted. For example, if an employee on probation worked the necessary number of hours required to claim unemployment benefits under the program in their state, they may be able to receive income for a limited amount of time.

In addition, an employee on probation will also have protection against acts of wrongful termination and/or being fired in a manner that violates the law. For instance, an employee may be able to sue an employer if they are placed on probation, but the terms of their contract forbid it.

An employee may also bring a lawsuit against an employer who violates company policy. For example, if the employer fired a probationary employee in a way that contradicted the rules and procedures laid out in their corporate policies or an employee handbook.

One last protection that a probationary employee may be entitled to is filing a lawsuit against an employer for wrongful or unlawful termination. For example, it is illegal to terminate a worker for participating in whistleblowing activities or in retaliation for complaining about an employer’s lack of regard for the safety and well-being of their workers.

Should I Talk to a Lawyer about Firing an Employee?

If you are an employer who is planning on implementing a probationary period for new hires at your company, then it may be in your best interest to consult an experienced wrongful termination attorney. Alternatively, if you intend on firing an employee either during or after their probationary period is over, you should absolutely speak to a local employment law attorney before you take any further actions that may potentially result in an employment lawsuit.

A qualified employment law attorney can make sure that you understand your rights and legal obligations under the labor and employment laws in your state. Your attorney can also assist you in drafting company policies and employee-related documents, such as a company handbook, that incorporate legal protections and procedures to comply with for both you and your employees.

In addition, if you fire an employee and that employee decides to sue you in court, your attorney will also be able to provide legal representation in court or at any legal proceedings related to the employment matter at issue.

On the other hand, you may want to hire an employment law attorney in your area if you are a newly hired employee and require help with reviewing employment documents like the terms associated with an employer’s probation period or an employment agreement. Your attorney can ensure that the guidelines set for your probationary period are legally permissible and fair.

Your attorney can also help to guarantee that your legal rights as a worker are receiving full protection under the laws in your jurisdiction. Additionally, your attorney will be able to assist you in filing the necessary legal forms and documents required to bring a lawsuit against your employer if you believe you were wrongfully terminated from your job.

Finally, your attorney will also be able to provide legal representation both during court hearings as well as at meetings or negotiations that are related to your case and held outside of the courtroom.