Probation is a bluff with most employee terminations

by on May 27, 2009 · 0 Comment POSTED IN: HR Info Center

Probation makes employee terminations harder by lost of “at will”

Don’t be surprised if your attorney advises against probationary periods, or if in your new handbook, probationary periods are gone. Probationary periods are a bluff in non-union, non-government operations.

Probation periods undermine “at will” status

Probationary periods basically undermine a company’s at-will status with employee terminations If you put someone on probation and they make it through the probationary period, it essentially says that the company has lost the ability to fire that employee at-will forever. Why would employers do that to themselves? That’s why probationary periods are a bluff.

It’s true that in at-will states, employers can start employee terminations at anytime. The thing is, the newly fired employee also has the right to sue at-will. He can pick any one or all of the categories on “the list” and claim he was fired for that. So, don’t use that at-will right very often but you do want it available. Any time you start employee terminations at-will with no reason, no documentation, it’s risky. But your company should want the right available.

Probation is a bluff when dealing with employee terminations, and even from a management point of view, it doesn’t really work. So from a management point of view, this thing doesn’t help anyone with employee terminations. Likewise, get rid of introductory periods, orientation periods, anything like that. Just don’t set that time frame. So essentially, an employee is on probation from the moment they are hired and that period never ends. You can still say benefits don’t start until you’ve been here 90 days. You can still have a benefit waiting period but when dealing with employee terminations, don’t think the probationary period’s going to get you out of challenges for discriminatory reasons.

Layoffs and RIF’s
The term “layoff” can mean callback. If you tell an employee they’re laid off, but then two years later, you rehire someone else, there could be some jeopardy there. Same goes for the term “reductions in force”. You’re really just terminating employees. But just as I said before, the list still kicks in.

If you go through reductions in force and everybody’s over 40 or everybody’s black, everybody’s Hispanic, everybody’s white, everybody’s male, everybody’s female, you got a challenge, so terminating an employee while calling it a layoff doesn’t do much good.

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 April 2, 2008

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