Manufacturing - Termination in a Probationary Period
Carol592
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My company is located in Wisconsin and we have a 'probationary period' for new employees in production of 180 days. It is not in writing but it is something that is communicated to new hires. If the employee has been trained, is not performing up to standards and a company has a PIP (Performance Improvement Process), does the company needs to put an employee who is in a probationary period through the entire PIP process before they should terminate? What I have been told is you treat a new hire exactly as a ternured employee by documenting (to cover legally) and take through our PIP process. I am told the 'probationary period' is a timeframe for keeping close tabs on the employee and to give him/her coaching and make sure they are fully trained by the end of the probationary period. I thought the probationary period was a time to access performance and if he/she is not working out as expected you could terminate. Love to get others thought and guidance.
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My company is located in Wisconsin and we have a 'probationary period' for new employees in production of 180 days. It is not in writing but it is something that is communicated to new hires. If the employee has been trained, is not performing up to standards and a company has a PIP (Performance Improvement Process), does the company needs to put an employee who is in a probationary period through the entire PIP process before they should terminate? What I have been told is you treat a new hire exactly as a ternured employee by documenting (to cover legally) and take through our PIP process. I am told the 'probationary period' is a timeframe for keeping close tabs on the employee and to give him/her coaching and make sure they are fully trained by the end of the probationary period. I thought the probationary period was a time to access performance and if he/she is not working out as expected you could terminate. Love to get others thought and guidance.
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There are some posts that cover this whole "probationary period" thing in some depth. The short story is that you probably say that employment is at-will on your application and in your handbook. If employment is at-will, then why is there a probationary period? What is it after probation if not at-will?
The at-will doctrine simply states that you can fire someone for any legal reason or no reason. It's difficult to justify a no-cause termination, so you don't see that very often. It can, in fact, be challenged as a cover for an illegal cause and invoke an investigation by an outside agency. Just because there is an at-will doctrine at work, does not mean that your decision to terminate employment cannot be examined for legal compliance later. You should always thoroughly document and use the same process for everyone. If you want to have a shorter process for people in their first 180 days, you can do that. Just have a process that covers the company's interests and use it on everyone in their first 180 days and then use the full process thereafter. Any "system" that permits undocumented causes of termination or causes of termination that do not relate to performance (including appropriate pro-social behavior and professional conduct, not just simple task performance) is asking for trouble.
A probationary period is a time of adjustment for both parties--the new employee gets to know the job duties, his co-workers, the company's culture, practices, and rules, and decide if this is a place he wants to stay. The employer gets to know the new worker's skills, knowledge, abilities, and work ethic, and decide if he will fit in with the culture and work well with others. This is also a time to correct any deficiencies or mis-steps the new worker may take.
Just as you can lengthen the disciplinary process depending on the circumstances, you can also shorten it. However, you must be able to clearly defend your decisions if you encounter a legal challenge. If you were a new employee, wouldn't you want to be given an opportunity to correct any problems before they toss you out? This is simply the fair and right thing to do, and also helps avoid problems if the new worker is unable to meet the standards of the position.
[quote user="CAHRGal"]A probationary period is a time of adjustment for both parties--the new employee gets to know the job duties, his co-workers, the company's culture, practices, and rules, and decide if this is a place he wants to stay. The employer gets to know the new worker's skills, knowledge, abilities, and work ethic, and decide if he will fit in with the culture and work well with others. This is also a time to correct any deficiencies or mis-steps the new worker may take.[/quote]
There are numerous legal opinions, advice of certain state agencies, and some case law that suggest against using "probationary period" language if employment is at-will. If it's at-will, it's at-will: creating other categories generates opportunities for their full definition to be determined in court. The primary issue here being, if employment is "at-will" during the probationary period, what is it after that? If it's still at-will, asks the attorney for the plaintiff, then why have a probationary period at all? Surely employment is not "as" at-will after the probationary period as during or the employer would not have such a thing.
That doesn't mean you can't have something called a probationary period but it needs to be narrowly and clearly defined in the handbook so that those types of questions don't arise.
[quote user="CAHRGal"] Just as you can lengthen the disciplinary process depending on the circumstances, you can also shorten it. However, you must be able to clearly defend your decisions if you encounter a legal challenge. If you were a new employee, wouldn't you want to be given an opportunity to correct any problems before they toss you out? This is simply the fair and right thing to do, and also helps avoid problems if the new worker is unable to meet the standards of the position.[/quote]
And in order to clearly defend, you must clearly define important dividing lines in your policies and then enforce your policies evenly.
[quote]II. Employment-at-Will<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
. . . is an “employment-at-will” state and employees of the City of . . . do not have a contract of employment. Neither these policies nor any other document constitutes an express or implied employment contract or any right to continued employment. These policies are not intended to and do not imply or create a vesting or a contract entitling City employees to any specific benefits or policies from the City. The contents of this manual and City of . . . policies and procedures may be changed at any time.[/quote]
This is our statement of 'at will' employment. It addresses the difference between 'contract' and 'vestment' as opposed to 'at will'. It relates to employment and does not change at the end of a probationary period.
[quote]IX. Initial Employment Period (IEP)
A. The City of . . . uses an initial employment period as an integral part of the employment process for employees holding full-time, part-time and grant funded classified positions to determine the suitability of an employee for his/her position.The initial employment period shall be used to assess new employees' work performance, interpersonal behavior and conduct and to allow sufficient time for an employee to adjust to his/her position and work environment.[/quote]
We don't use the word probation. However this continues for several more articles describing rules of conduct, evaluations, extension of the IEP and so forth. There is no caveat that ties the IEP verbally to the 'at will' clause because there is no change in 'at will' rather the person is still in the IEP or has successfully completed the IEP. Failures during the IEP will be cause for dismissal the same as failures for an employee that has completed the IEP.
Make sense?
What does your handbook or polices say about your disciplinary (PIP process)? Does it just state the process or does it give the company some leverage to change the process based on the circumstances/severity of the infraction? One thing I have seen is that if your policy says here is our disciplinary process and you are also stating you are an at-will employer, you may have just put yourself into a "contract" with an employee (basically, you must follow these disciplinary steps before termination) and therefore voided the at-will clause. I would make sure that your disciplinary policy allows you the ability to change or modify at any time.
I am not a fan of probationary periods. These were started many years ago because employers felt they could use this as a reason to terminate someone at the beginning of the employment if the employee was not fitting into the culture, not picking up the job duties during training, etc. In my opinion you don't need this probationary period to terminate someone. If someone is not performing up to standards, then discipline them according to your policy. If he/she doesn't improve then follow the process and terminate them just like you would an employee that has been with the company longer.
[quote user="TXHRGuy"]Does Section IX go on to say how long the IEP lasts and why it even exists versus any other plain old fashioned period of employment?[/quote]
Yes. The IEP for those that have additional field training such as fire and police and those who do not have additional field training are listed. The purpose has been entered above as "A" under the section number. . . . "integral part of the employment process". Part "D" has this statement for disciplinary actions during an IEP. "In the case of dismissals which take place during the IEP, progressive discipline is not required. In these cases, the department head shall issue a letter notifying the employee of the separation and give the reason why.
The employee has a skills list that must be performed at a minimum standard. The IEP is used as a period where we do continual evaluations every 60 days average recommendations for improvement. Remember there is a whole lot between what happens during an IEP that would lead to a dismissal. All dismissals are reviewed by the City Attorney. The standards of expectation change when an employee is beyond the IEP and acts with a moderate degree of responsibility in carrying out fire suppression, recuse or ems task. So yes there is a specific reason for the IEP other than tradition.
What does your handbook or polices say about your disciplinary (PIP process)? Does it just state the process or does it give the company some leverage to change the process based on the circumstances/severity of the infraction? One thing I have seen is that if your policy says here is our disciplinary process and you are also stating you are an at-will employer, you may have just put yourself into a "contract" with an employee (basically, you must follow these disciplinary steps before termination) and therefore voided the at-will clause. I would make sure that your disciplinary policy allows you the ability to change or modify at any time.[/quote]
Here is how we handle this. We have an Employee Responsibilities section. Code of conduct expectations, responsibilities of public office and discipline guidelines. Guidelines are used rather than a fixed disciplinary requirement. Would that constitute a change from 'at will' to 'for cause'? Not necessarily.
Though I can understand your reticence concerning probation periods and agree that disciplinary issue are not necessarily probationary issue, I do feel that this period of extra scrutiny that you would not have your regulars going through has value.