Employment terminations anytime can result in a lawsuit

by on May 29, 2009 · 0 Comment POSTED IN: HR Info Center

Probation periods don’t protect you from a wrong employment termination lawsuit

No. The vulnerability in employment termination with an employee on probation is the same as with someone who isn’t. When firing an employee on probation, they can still sue you for age or sex or race. This idea of a probation has been a bluff. It was a good bluff for a long time. Employees didn’t understand it. Now, they figured it out. So don’t be surprised if probationary periods start to get eliminated.

If you’re union or government, it’ll still be around. Yes, you have the right to fire at-will during the probationary period. They still have the right to sue at-will. Don’t think you’ve bought any serious legal protection by firing an employee while they’re on probation. But you still have the right. For the private sector, probationary periods came from union and government. They mean employees have no right to grieve during that time but there’s no legal protection there.

Probation periods have little bearing in private industry with employment termination
In fact, probationary periods are starting jeopardize your at-will relationship with an employee. Think of this. You hire an employee on a 90-day probationary period. Day 89 the supervisor comes screaming to human resources saying that employee needs to be fired. HR, as always, asks for the documentation.

They pull the file and see that there’s no employment termination documentation. Plus, the supervisor miscounted. It’s day 95. Thus, the employee has successfully completed her probation. Now, it’s as though employment termination at-will is impossible because they made it through probation. It just doesn’t make any sense for an at-will company to handicap themselves like that when it comes to firing an employee.

This is tough. It still shows up in way too many handbooks. So don’t be surprised when you see the elimination of the probationary period in your handbook. You might still have benefit waiting periods, where benefits don’t start to accumulate until you’ve been with the company for a certain length of time. But instead, you’ll probably see employees get hired and basically stay on probation for their entire time with the company. It just means you’ve got to be more vigilant in hiring, get the best match for the job, watch people more carefully and take prompt and appropriate action when there’s an issue.

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott on April 29, 2009

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