Introductory Period

TeresaBlank · May 2002

Our small (under 50) company has an "introductory period" of 90-days for new hires and, as stated in our Employee Handbook, the employee or the company can terminate employment at any time for any reason during this period. We discharged an employee during this 90-day introductory period and she has consequently filed for unemployment. Can we use this "introductory period" as defense to deny unemployment? Should we still use the progressive discipline approach during the introductory period?

Don D · May 2002

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-02 AT 10:39AM (CST)[/font][p]We have the same policy for new hourly employees. They will no doubt qualify for unemployment insurance, if otherwise eligible, and if they were not discharged for misconduct as defined in your state UI law. At least in Mississippi they will, and ours is a very conservative UI law state. We don't sweat that as being important. If they draw they draw. We all roll the dice on new employees to a degree and its more important to us that our policy allows discharge for any reason during 'probation' than whether or not they might draw UI. We do not use progressive discipline during this period of time. The reason we have that particular discharge policy is so we don't get hamstrung with progressive discipline on new hires and can terminate without it. The fact that we do have such a policy does not affect the state Unemployment Insurance laws or their determination of eligibility. they primarily will look at 'why is the claimant out of work?' Was it inability to perform the job, misconduct, violation of employer work rules and attendance policy, etc. Those latter 2 are misconduct in my state and they won't draw, at least not until they return to work somewhere and earn 8 times their weekly benefit amount.

Lori B · May 2002

Please realize that the UI issue with probation periods is state specific. I believe there are something like 17 states that do recognize these periods in some form or another. For ex, in Illinois, if you terminate someone within the first 30 working days (not calendar days), they simply do not qualify for UI.

diane · May 2002

Theresa, we are a company of less than 50 employees and have the same policy in place. With respect to unemployment, if we terminate an employee during the probationary period for performance reasons, I do not contest unemployment. I also counsel my managers to treat all employees fairly and consistently. Therefore, if a new employee is not performing well, the manager should communicate the deficiencies, document and give the employee the opportunity to improve. This period of improvement is usually shortened, however. I should also tell you that the probationary period was in place prior to my employment with the company. Personally, I would do away with it. It's kind of a ying/yang situation. On the one hand we're an "at-will" state, so we could cut the person loose. On the other hand, I believe you always want an employee to leave feeling that you cared about him/her even if things don't work out. Probationary period or not, I always try to ask myself, how would I want to be treated if I was in that situation? Hope that helps.

TeresaBlank · May 2002

Thank you! I, too, was hired with that policy already in place. I see not reason to have it, either. Maybe that is something I can change . . . .

Carol CA · May 2002

I would agree that the employee would be eligible for unemployment and not to sweat it. A couple of months of service charged against your account is not going to make your premiums skyrocket.

I also have a concern, however, about your probationary period. The way you phrase it indicates that the employee is at will during the probationary period, but once they sucessfully complete the 90 days probation they are no longer at will. That is the dangerous inference you have to be aware of.

TeresaBlank · May 2002

Thanks for your post. It is stated in our handbook that we are entirely at will throughout employment - thanks for pointing out the possible problem, thought.

Rockie · May 2002

You should definitely do away with the 90 day "probationary", "introductory period", etc. This will erode your at will status in an employment lawsuit and may indicate an implied contract of employment.

Don D · May 2002

I respectfully disagree with Rockie. Our employment attorneys have thoroughly reviewed and analyzed our 'probationary period' policy. They suggest that this policy does nothing more than specifically identify a period of time during which the progressive discipline procedures do not apply, and therefore may be dispensed with. Further, they have advised that this policy grants them no more or less in employment rights than they would otherwise have regarding the at-will status of this state, and that in the absence of this particular policy, the new employees are subject to our discipline system which locks us in to a significant period of time during which we go through three or more steps. It is understood, of course, that terminations in violation of the law (age, race, religion, sex, ethnicity, handicap status, etc.) are certainly not made. I have been asked in many UI hearings why the individual did not have the benefit of the progressive discipline system defined in the handbook. The answer given each time was that the discipline progression does not apply to probationary employees. No followup question has ever been asked and no case has been lost.

TeresaBlank · May 2002

At your UI hearings, did you ever use the defense that they simply were not able to do the job as expected and still win?

Don D · May 2002

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-02 AT 01:24PM (CST)[/font][p]No. We rarely if ever will terminate during the probationary period those who haven't yet mastered the task. That's what our probationary period is for and we're serious about going dozens of extra miles to bring them up to performance speed. The ones we terminate are the non-attenders, the late punchers, the safety violaters, the jokesters and the on-job-sleepers. If they have a desire to learn the job and are sincere about working here, they are never terminated during probation. Sorry if I gave a wrong impression. The related hearings we've won center on violations of our probationary attendance policy (no absences), violation of our diligence while at work policy, violation of our training progression policy and violation of our time-clock policy. All of those have been ruled conduct issues. In the absence of the probationary policy, we would have lost in each case or would have been mired in progressive discipline on non-performance issues. Yes, we do differentiate between on job performance issues and all these other issues that are behavioral.

System · May 2002

Don D
Does your handbook state that during this probationary period the discipline policy does not have to be followed? I really like this idea but want to make sure I have all the information. Thanks

Don D · May 2002

Our policy manual AND union contract state, "The Company retains the right to issue, modify and enforce reasonable work and safety rules, including the right to discipline and discharge employees during their probationary period, with or without cause, and without recourse by the employee or the bargaining unit to the grievance procedure or the progressive discipline processes afforded to employees who have moved beyond the initial probationary period, except as required by law." The fact that we have a union does not add to or take away from our ability to formulate and enforce this policy. However, I mention it because it does guarantee its been through a few more layers of scrutiny beyond the company.

Margaret Morford · May 2002

MOHR,

You can also draft a progressive discipline policy that states a probationary employee will be taken directly to Final Written Warning. This forces the manager to issue some kind of paperwork before firing a probationary employee. This not only gives you some documentation to use in any type of legal action, but insures that the probationary employee is counseled at least once about poor performance before being terminated in the probationary period. If the probationary employee corrects the problem, the Final Written Warning reverts (after the probationary period) to the first step in our corrective action system. I'll send you the language if you like.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

santire · May 2002

I would like to second some of the excellent comments that have occurred during this conversation on the probation item. It is interesting that you are, at least in part, a union shop. The concept of probation started in union contracts quite a while back. Then nonunion employers picked up on the concept. In many states, this has created problems for them when there is no distinction between at-will during the probation period and after the probation period. Some courts have said that if there is no clear distinction, the employee is reasonable in believing that more security attaches once the period is over, that the termprobation must mean something. You seem to have addressed this with the distinction that the progressive discipline arises only after the probation period so that before the 90 days is completed the employee has no right to progressive discipline. Some attorneys advise against any probationary term because of court decisions that have come down in the past few years. However, others and I am one of them, advise that a probation period is acceptable as long as the distinction is clearly laid out during orientation and in the employee policy manual. That distinction must also be maintained in actual practice. Just also to second another observation, the existence or not of a probationary period has no impact on UI.
Stanley P. Santire

Theresa Gegen TX · May 2002

Whether the employee is eligible for unemployment is 100% dependent on State Law. Some states will disqualify an employee who is terminated during the "probationary" or "introductory" period. (Texas will not, but I have seen articles from other states that go the other direction -- so you will need to check your specific state law).

Most states have some time frame an employee must work to be eligible for unemployment. Once that time is passed, the employee is eligible, regardless of any "introductory" period.

More important than having a formal period of time in your company handbook is having supervisor who take a close look at new employees, do an initial review after 90 days, and if things are working out, terminate the employee. If an employee has immediate attendance or attitude problems, they are not going to get better over time. And it only get harder to hold an employee accountable. If it is not working out, the company needs to end the relationship.

Good Luck.

Introductory Period

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