Is Employee Probation a Good Idea?

Employee probation is a double-edged sword. There are obvious benefits, but there are also hidden risks. Probation gives you an opportunity to evaluate an employee's actual skills and performance on the job, but a poorly constructed or badly administered program could land you in court. The primary rule of employee probation is: be sure to distinguish the terms and conditions of employment for probationary and regular employees. Also, make certain you know what you expect to achieve by implementing probationary status.

Successful completion of probation should be directly connected with performance goals that are clearly communicated to probationary employees. There should also be opportunities for formal performance assessment and feedback. And all of it should be written down. This protects you if there's a later legal challenge to a termination decision.

You should also know that probation does not suspend or diminish employee rights and protections under federal and state employment laws against discrimination and harassment. Probationary employees are entitled to the same protections as your regular employees.

Perhaps the most important point is that the existence of a probationary period implies that after the employee successfully completes it, he or she will be terminated only for cause. In this way probation is fundamentally inconsistent with "at-will" employment. So after employees successfully complete probation, get them to sign an acknowledgment form, making clear they are still "at-will" employees and that either party can terminate the employment relationship for any reason at any time.

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The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal problem, consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site establishes or should be construed as establishing an attorney-client relationship between you and Gregory A. Bonfiglio or the law firm of Morrison and Foerster LLP.