Don't let that employee probationary period lull you into a false sense of security

Employers, are you expecting too much from your "probationary period"?

Most employers have a 90-day "probationary period," and if you believe what's in their policies, they can fire an employee for any reason during that period -- no ifs, ands, or buts. (And if you believe that, I know a Nigerian prince who needs to hold your money for a little while so he can return it to you a thousandfold.)

My colleague Heather Bussing has already written well about how "probationary periods" can givTeacher female.jpge employees the impression that they can't be terminated except for "cause" once the probationary period has ended.

In addition, the probationary period may give employers a false sense of security.

Case in point, tweeted by Vancouver labor and employment attorney Jillian Humphreys:

A hotel in Charlottestown, Prince Edward Island, was in the news recently because management fired an administrative assistant/desk clerk within one hour of her announcement that she was pregnant.

The hotel says that the former employee was not terminated because of her pregnancy, but because of pre-existing problems with her work performance and an inability to get along with her supervisor. According to the hotel, the decision to terminate the employee had actually been made a couple of weeks before she was terminated (and, more importantly, before the hotel had any reason to believe that she was pregnant).

Normally, this is a good defense.

But not always. Like, not when you don't have any proof apart from "scout's honor" that the decision had been made earlier.

In this case, unfortunately for the hotel, the employee was in her "probationary period," and the employer didn't think it had to document any of her issues or even meet with her to let her know that she wasn't meeting their standards.

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So, it will be their word against hers that the hotel made the decision to terminate before she announced her pregnancy. And, as the employer itself admits, the timing of the termination was a bit     . . . problematic.

I tweeted to Jillian that this employer would be in big trouble in the United States, and she said that same was true in Canada.

Occasionally, I will talk to employers who, like this hotel, think that the probationary period means they can do whatever they want, which is not correct. I've seen employers terminate employees during their probationary periods for things like

*Protected concerted activity ("For cryin' out loud, she hadn't been here a month, and she was already bi**hing about her overtime!")

*ADA disabilities ("Oh, sure, we accommodate disabled employees, but if they have a non-work-related injury during their probationary period, we terminate them and let them reapply when they're well.")

Oy.

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Employers should keep in mind the following about probationary periods:

* Even cowgirls get the blues, and even probationary employees have rights under the anti-discrimination laws. If an employee is terminated for a reason that violates the law, the fact that he or she is "probationary" is not going to help you, the employer, one whit.

* As Heather has pointed out, having a probationary period may cause your employees to believe that they are no longer "at-will" once the probationary period ends. (Not that an employee is ever "at-will" anyway. See comment about Nigerian prince, above.) An employee misunderstanding may not have legal consequences depending on where you are, but in a state like California, it probably does.

 So, what can an employer do? If anything?

*It's usually fine for benefits not to kick in until the "probationary" period is completed, and you can even say that in your handbook if you have one.

*It's fine to have a lower (easier) standard for termination of a probationary employee. However, the lower standards ought to be spelled out and should be applied consistently within the "probationary" population of your work force. And the lower standard cannot violate a law, as in the ADA example above. F'rinstance:

THIS: "Our attendance policy for regular employees is 10 no-fault points and you're out. A probationary employee who accumulates 3 attendance points will be terminated."*

*Even here, you may have to make exceptions for absences associated with "disabilities" within the meaning of the ADA.

NOT THIS: "We do not make reasonable accommodations for probationary employees."

OR: "Only regular employees may make complaints of workplace harassment or unlawful activity in the workplace."

OR: "Only regular employees may complain about their terms and conditions of employment."

Of course, if you are going to terminate a probationary employee under your "easy" (but legal) termination standard, you'll also need to have some evidence that the employee failed to meet the "easier" standard, such as attendance records, or documented warnings, or something besides your word. Yes, this is true even if the employee is "probationary."

Our PEI employer is learning that lesson the hard way.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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