Probation periods outside of specific business can nullify “at will” employee termination in some cases
“At will” employee terminations
Most managers rarely fire an employee at-will. They only do on the advice of legal counsel and of HR. They want to give a reasonable chance and document it if at all possible. In fact, supervisors probably don’t want the right to fire at-will. You want them to have to go through HR, go through somebody. Even if we suspend with pay and count to ten, they may take immediate action and jump to employee termination.
But I really don’t want the right to fire at-will. And if you use it too much, you scare good people. But I want the right to use at-will employee termination, as long as I can keep it. So again, don’t put too much stake in the probationary period to get you out of this.
Probation periods: A false sense of safety
Another thing comes into play with these probationary periods. Watch for the elimination of this in non-union, non-government operations. This doesn’t buy anyone any protection with regard to employee termination. You hire people. Then at day 89 of a 90-day probationary period, managers go screaming at the HR, saying they have to fire someone. And HR is, as always, asking for the documentation. So HR pulls the file and there’s nothing here on that employee. Plus, HR says “Oops, you miscounted. Today is day 93, thus they completed their 90 day probation successfully” And thus the company has now risked the at-will relationship forever.
Probationary periods came from union and government. During that time an employee has no right to grieve. If you got union or government, you’ll hang-on probationary period. No panic. Because once they hit the union or government, there’s a due process requirement prior to any employee termination.
The private sector would never do this to themselves. Odds are you’re in an at-will state, every state’s at-will. Some states modified a little bit, Montana. But everyone is typically at-will in the private sector. And so why would they limit their employee termination privileges? You can have a benefit waiting period. Benefits don’t start until your 90 days. That’s fine.
Keep your at-will statement. We reserve the right to fire anyone anytime. Keep that. Get rid of probation, that way the employee is basically on probation for as long as they work for you, whether it’s one day or 30 years.
So don’t be surprised if you have a probationary period currently. Don’t be surprised when your handbook goes to legal counsel. And, you know, this is a bigger deal in East Coast and West Coast than it is and Midwest, but don’t be surprised if the attorney comes back and says, “We’re getting rid of this.” Don’t panic. New handbook goes out, the probationary period’s not in there. They sign for the new handbook or they come to work the next day, everyone’s at-will all over again.
Plus, to be honest, most of us hate to interview. So we got this probationary period, so we just kind of give up. “Okay, you’re hired. I’m tired, and I don’t want to interview anybody else.”
So even if your company doesn’t buy in to the legal side of this, from management point of view, this thing just isn’t really helping us deal with employee termination. You really want to be concerned from day one that somebody is the best match for this job. And if you see some problems early on, then I’m going to sit down, say here’s the problem, give them the reasonable chance to save their job.
Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott, Esq. on August 22, 2007
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