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A probationary employee is someone who is working for a stated number of days, usually 90 days, before being granted the status of a regular employee. While the law does not stipulate the length of the probationary period, it is customarily limited to 90 days, but the employer can have a greater period. The probationary status does not mean that the employee has no rights, and in many ways, there is no significant difference between a probationary employee and a regular employee. Neither employee is necessarily entitled to a permanent employment status.<\/p>\n

This type of employee can be fired if their work does not meet the required level of performance, but the regular employee can only be fired “at will,” which means that the firing is legal unless it is based on discrimination or one of the other reasons that are legally excluded. California is known as an “at will” state as are 48 other states. Some terminations during a probationary period that can lead to a lawsuit.<\/p>\n

A probationary employee might be notified in writing that successful completion of the period means they are still an “at-will” employee. Of course, if the employee is given an employment contract for a specific period after completing a probationary period, then this contract may preclude an “at will” termination. The contract language should be specific in this regard.<\/p>\n

An employee who is terminated prior to the end of the given period will likely not be eligible for unemployment insurance since they may not have met the minimum hours required for eligibility. However, the probationary employee may be able to receive unemployment benefits if their total hours worked on previous jobs satisfy the past earnings requirement. The decision to grant unemployment benefits will also depend on the reason for termination. If the employee is engaged in willful misconduct, then it is highly likely they will be denied benefits. However, eligibility will not turn on job performance. If an employee did their best, then being fired is not cause for denying benefits.<\/p>\n

It is important to note that extended periods for employees are legal. One employee may be on a 90-day probationary period, and another employee could be on a 6-month probationary period.
\nOne other type of probationary period needs to be addressed, and that is the employee who is placed on probation for poor performance. This is legal. The intent should be to encourage the employee to improve their performance. Absent the improvement, the employee can be let go.<\/p>\n

If you, or someone you know, are facing legal issues in the workplace United Employees Law Group has answers, Call Today for your free and confidential case review. Please feel free to CONTACT US with any questions about this blog or your exact situation.<\/p>\n

Photo Credit: Shutterstock\/ Africa Studio<\/p>\n","protected":false},"excerpt":{"rendered":"

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