Need ASAP! Person in Probationary Period

ConfusedHRinTN · September 2002

I am working with a company that has asked me the following. I need to know what to tell them and where I can site it to. This is a small company (20 employees or less).

They have an employee who is in her 90 day probationary period. They do not think her performance is up to where it should be after this time period. Do they have to review information with her and give her a warning with the opportunity to improve before firing her? Or can they just go ahead and do it. It's not that she has been doind anything illegal or wrong. She just has a bad attitude and is not learning like she should be learning.

Pork · September 2002

Company should turn to their written policy on probationary situations and the outcome for failure to perform to training standards. In our "at will" state we can terminate (change a state of employment at will) at anytime within our 60 day orientation and training period for any reason. However, that termination does not protect us from EEOC should the individual be in a protected class. We once terminated an orientation/training employee for poor performance because she was to large for the very physical activities required of any employee. She could not climb, stoop, lay on the floor for some activities, the isles were to small, she could not physically do the job. The manager without witness told her after 42 days that she was just to large for the job and was going to let her go! She filed an EEOC complaint stating the manager fired her because she was to fat. She was fat, but the "to large" was what he said. We could not produce fact or supporting testimony to the contrary, so we had to settle that one. She agreed to reapply and we agreed to pay her lost wages immediately and consider her for a new opportunity. She has never reapplied although she has called and ask for a reconsideration. Our response has always been "read your copy of the agreement signed by all parties and have a nice day, good by". I hope this helps, Good luck in TN, Pork

offadmin · September 2002

I agree with Pork. Check your written policy, but if you are an at-will employer and if it doesn't violates EEOC regs, you have the right to terminate an employee without reason. If the problem with this person is a bad attitude, now is the time to get rid of her. A bad attitude will not get any better with time.

Pork · September 2002

Markita, I hope you get this; I responded to your e-mail, but the mail man keeps kicking it back to me. Please enable your HRero e-mail or get your address fixed to receive. The mail-man says you are unknown in his world. Pork

Whatever · September 2002

What did you tell this person when they were hired. All new employees should be told and given in writing what the company policy is. Our policy is that during the probationary period the employee can be terminated without any reason given and we make sure the new employee understands this policy.

Theresa Gegen TX · September 2002

Many companies think that having an employee is probationary status is a GREEN light to fire without backup.

But it is not. All of the anti discrimination laws apply to an employee in probationary status. So the question becomes one of a risk analysis -- if this employee sues for wrongful termination due to race, sex, (you name it); how will we defend the claim.

The risk analysis that needs to be done is rather fact intensive and there is no bright line rule.

I am a strong believer in letting employees go early on if it is not working out -- BUT the company managers should be able to specifically state the reasons with specific examples. Right now, it seems like you don't have the reasons articulated as strongly as possible. The reasons should be documented and preserved for defending any possible claim.

Good Luck!!

NaeNae55 · September 2002

Did you use the term "probationary period" with the employee at orientation, etc? I strongly recommend using the term "initial period" instead. I have read of cases where the term "probationary period" was cited in lawsuits as back-up for not being terminated. My poor memory doesn't remember any details, but what stuck was to switch to the term "initial period."

Ok, I didn't actually help you any, but getting it off my chest helped me. x0:)

Gillian · September 2002

If the 90 day probationary period along with the presumption that one can be terminated at any time without backup etc. isn't listed among the greatest HR myths on the HR myth thread, it should be. Except for union environments where it may be part of the contract, the only real difference is there is less risk for the employer. I think that is because almost everyone, employer and employee alike, think that the 90 day period is something real. Employers terminate during this time thinking that there is no problem doing so and few employees challenge it because they think that there is a rule somewhere which says that employees can be terminated during the 90 day period.

Rockie · September 2002

Being located in South Carolina, this is an at-will state, so the term "probationary" period doesn't really apply. In fact, it can work against the employer if it is found to be an "implied" contract. That is, if the employee gets the idea after he passes "probation", his job is permanent.

What we do is evaluate an employee's performance within the first few months, usually 90 days to 6 months, depending on the complexity of the position and how long we feel it should take someone to learn and be up to speed. If they aren't performing up to par - being able to meet the performance requirements of their positions and adhering to policies and procedures - absences, tardies, etc., then I suggest that supervisors cut their losses and terminate. I do advise supervisors to at least give one good counseling session to make sure that employees DO understand (1) the requirements and (2) how their performance and/or behavior is not meeting these requirements. If these behaviors persist, then I feel employee has been given ample warning and they either are unable or unwilling to do the job.

As stated before, "at-will" is not a catch all to "fire at'will". You still cannot violate any federal or state laws and there are many. Employment at will is beginning to be more and more of a dinosaur and has been almost litigated out of existence.

Just be careful when going down this path.

valentine · September 2002

In MA you are an employee at will and can be fired for any reason or no reason provided you don't violate the EEOC rules. We have a paper new employees sign that says they are on a 90 day probationary and they understand they can be terminated for any reason during this period. It is also during this period that we do their CORI background check and they understand that if that comes back negative they will be immediately terminated. We have had one occasion when a grievance was filed by someone terminated during their 90 days and we won because of our documentation policy.

LFernandes · September 2002

NY is an employment at will state. However, that is only as good as what will stand up in court. Have you reviewed the job description with the employee so that she understands what is expected of her. Has anyone told her that her behavior was inappropriate or that her performance is not meeting standards?

My suggestion would be to document, document and document and then extend her probationary period (we call it a training period) an additional 30 days. Just be sure that this isn't in conflict with your written policy. Revisiting your policy after all this is over may be a good idea. Don't forget that policies don't have to be written in order to be used either for or against you in court. The key is to be consistent and fair.

Good luck!

Don D · September 2002

If you are in an at-will state, I think you are destroying what little protection that offers by your form implying that 'after 90 days we will need a reason to fire you'. If you tell them they can be terminated for any reason during the 90 days, the inference will be 'they will need a reason' after that. We have removed the word 'permanent' in our contract and replaced it with 'regular' (as opposed to part time and temporary). The EEOC quagmire tends to manipulate our thought processes as intended by that agency. I also agree that the term probation carries with it the implication that after probation, you have 'arrived' and are with us in some sort of everlasting way.

Gillian · September 2002

The next time that you revise your handbook you might want to check out the language with your attorney. When you say that someone can be terminated without cause in the first 90 days, it does imply that afterwards one can be only be terminated with cause.

HRBob · September 2002

Where is she in the 90 days? If she is about half way, I recommend written documentation by the manager on the specific work performance that leads to the conclusion she has a "bad attitude." I would coach the manager to conference with her and tell her the work performance that is not acceptable, using service friendly, team spirit, courtesy as all part the job duties of working there. State she must improve in the criticized areas immediately and maintain or she will be terminated. I would have her sign a document that outlined the above and also state in writing on the next occurrence (that any reasonable person could agree was poor performance) dismiss her.

By doing the above the company appears to 3rd parties to have tried to give her a chance even when you can say you did not need to because she was on probation. This termination would not disqualify her from unemployment benefits in several states that I know.

Good luck. P.S. "Bad Attitude" terminations in the early 70's were synonymous in federal court with discrimination.

ConfusedHRinTN · September 2002

Thanks for all your advice. The company has decided to give this person another chance and in the mean time collect any performance issues in writing. It stinks that they know someone is not going to work out, but they have to spend two months gathering info to get rid of her instead of cutting losses now. But, an open mind might see good things not revealed before.

Thanks again!

Don D · September 2002

Confused: It may stink, but, conversely, think how nice the money that your company will save might smell.

Lori1 · September 2002

Although it depends on your state laws. In New Hampshire you may terminate a 90 day employee at anytime for any reason or no reason. If your company is an employee at will company you do not have to give a reason or or a warning to terminate that person. Good Luck

Christine M · September 2002

One more note--yes, you want to use "Introductory" rather than "Probationary." Probationary has been interpreted by the courts as an implied contract.

I find that Outlook has been a good tool for me with new hires. When I bring someone on board, I set up a repeating appt on Outlook for the manager to review the newly hired employee's performance at 30, 60 and 90 days with them and I attach a form for them to fill out and return to me. I also put a two day advance warning on the appt so they get advance notice. It works pretty well in that the managers are given a reminder without me having to do any more work, the newly hired employee gets feedback, we have the documentation to support decisions we might make and, as it is on my calendar, Outlook also reminds me to look for that documentation.

Since we started doing this, I have had no problems with having sufficient documentation to support decisions, and the decision is usually made earlier in the process.

Need ASAP! Person in Probationary Period

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