Can an employer establish different probationary periods for new employees?

Employers have a wide variety of choices in setting employment probationary periods, including a right to establish different probationary periods for new employees. During these times, an employee can be terminated with or without cause. One of the advantages to the employer of having such a period is being able to save special benefits (e.g. – retirement plans) for employees that have proven themselves.

Probationary Periods and the Law

While it is not against the law for different probationary periods to be established for different employees (or different categories of employees), this selectivity may make the employer vulnerable to a claim of discrimination. Therefore, an employer should be prepared to justify any differences in probationary periods between employees. The federal government provides a good legal example of wide variance in setting probation periods, with probation’s ranging from 1-3 years depending on the circumstances.

However, just because employment is ‘probationary,’ does not mean the probationary employee has no rights. In many ways, there is little real difference between a probationary period employee and a regular employee. The advantages for both are the understanding that the relationship is not necessarily permanent, and the understanding that employee will be rewarded for good work. Disadvantages for both include the cost and time associated with having more than one evaluation period (it’s common to have one for hiring and one for the transition to regular employment).

Employers who discharge probationary employees also may benefit by limiting payments to workers’ compensation funds charged to the employer, or by not having to contribute to a preferred, permanent employee’s education, vacation, medical insurance, or 401K.

State Laws and Probationary Periods

Almost every single American state follows the “at will” employment principle, meaning that both the employer and the employee have the right to end the employment relationship between them, for any reason or for no reason at all. This is only a principle though, with some major exceptions written into the law of various states. But in this context, even a “probationary” period is often simply seen as a way to keep focus on an employee’s “best behavior.” Some state courts have even allowed probation periods to be extended, based on mutual agreement between the employer and employee.

Montana is the only US state that specifically shifts the burden of wrongful firing by giving almost any employee the possibility of suing for termination without cause. But even Montana does not protect employees during a probationary period, and the law presumes a minimum period of probation to be six months.

California is one of the leading states in protecting all classes of workers from at-will firing. The reality of potential lawsuits exists in every other state because of the common existence of contracts between an employer and the employee: even with a probationary employee. California courts, for example, have held that an employee handbook may be a contract. Further, both California and other states have similar rules protecting an employee from being fired “in violation of public policy.”

The bottom line is that even though probationary employees do have some protections from firing, the right to be free from an extended or different probationary period than someone else is not one of them.

Case Studies: Establishing Different Probationary Periods for Employees

Case Study 1: Varying Probationary Periods by Position

In the case of GlobalTech Corporation, the company establishes different probationary periods based on the position and level of responsibility. For entry-level positions, the probationary period is set at three months, while for managerial roles, it is extended to six months. This policy raises concerns among some employees who question fairness and potential discrimination in setting different probationary periods. Seeking legal advice, they explore their rights and potential courses of action.

Case Study 2: Contractual Variation in Probationary Periods

At Anderson Enterprises, the employer sets probationary periods based on individual employment contracts. While most employees have a standard three-month probationary period, some employees negotiate longer or shorter probationary periods based on their specific circumstances or skills.

However, a dispute arises when an employee with a shorter probationary period is terminated before completing the full three months. This leads to a legal challenge regarding the enforceability and interpretation of the employment contract.

Case Study 3: Probationary Period Extensions

In the case of Johnson Manufacturing, the employer exercises the right to extend the probationary period for certain employees who require additional time to demonstrate their suitability for the position. While the company communicates this decision transparently, some employees express concerns about potential job insecurity and unfair treatment. Seeking legal advice, they assess the legality of the probationary period extension and explore their options for recourse.

Case Study 4: Discrimination in Probationary Periods

At Smith & Co., it comes to light that the employer sets longer probationary periods for employees belonging to certain protected classes, such as race, gender, or age. This discriminatory practice raises significant concerns among employees who believe their rights have been violated. Seeking legal guidance, they gather evidence to support their claims and explore potential legal actions against the employer.

While employers generally have the flexibility to establish different probationary periods for new employees, it is crucial to ensure these variations do not lead to discrimination or unfair treatment. Understanding employment contracts, negotiating terms, and seeking legal advice can help employees navigate potential issues related to probationary periods in the workplace.