Time to kill probationary periods?

In today’s growing economy, many private employers are choosing a temp-to-perm arrangement using an outside employment agency rather than implementing formal probationary periods for employees.

It’s an approach that has been working well for the past few years, in good as well as bad times. But if you listen to some of the best thinkers in employment law, you might want to eliminate probationary periods altogether.

What’s that, you say? Probationary period protect employers from getting stuck with the wrong employees, right?

Well, yes and no.

There’s a growing body of thought that, in some cases, it might really be better to kill the probationary period and stop differentiating between your new hires and your long-term employees.

It’s not a good idea to give new hires the idea that their status is more “permanent” after 90 days for a number of reasons.

First and foremost, these employees might wrongly believe they can only be fired for cause.

Is that what you really want, as an employer? Or would you prefer they remain “at-will” employees, so you can fire them (or so that they can quit) at any time for any reason or no reason? While most people don’t terminate employees for “any reason,” you want the freedom to do that if you need to. 

Of course, having a probationary period doesn’t automatically mean that your employees are under contract as soon as they pass that point in time. But it can mean that, if you aren’t careful. Courts can conclude that you made a verbal contract or even that your handbook says the employee is now a contracted employee if you haven’t written it carefully.

The other problem with formal probations is that can create the wrong impression.

Many in the HR world today say that probationary periods send the wrong message that the company is just not sure about the employee and that they have a hill to climb during the first 90 days to gain acceptance.

That’s why more and more companies are ditching probationary periods.

In their place, these companies put into place a “check-in” with all new employees at the 90-day mark to assess fit, determine any additional training needs and solicit feedback on the on-boarding and orientation process.

This is a new way of thinking, to be sure, and it might not be for everybody.

Companies that decide to continue using probation periods need to be aware of the potential legal landmines. Here’s a checklist of do’s and don’ts for operating a successful probation program:

  • Do adopt, distribute and implement a policy regarding probationary periods before interviewing or hiring any probationary employees.
  • Don’t implement a vague policy. Include specifics about the timing of the period, the employer’s performance expectations and whether any extensions to the period would be allowed.
  • Do include an at-will disclaimer in order to preserve that type of employment relationship.
  • Don’t ignore warning signs of a potentially unsuccessful relationship – use the probationary period to make the best staffing decisions possible
  • Do provide frequent feedback to probationary employees.

 The bottom line on this question? You do not want anyone to think there is an implied contract of employment if they get past 90 days.