In theory, a brief probation period allows both employee and employer to familiarize themselves with each other and learn the ground rules. Many newbies resign before their first 90 days have elapsed. How can you work around this?
What’s in a name?
Probation began in the days of union dominance as a measure to protect employers temporarily from termination requirements of collective bargaining agreements. Union job holders may still forgo certain grievance procedures during probation months.
In today’s labor environment, probation is next to meaningless. The relationship between worker and employer operates “at will” in all states except Montana. That means either party may terminate it at any time and for any lawful reason. In most other countries, employees can only be fired for cause. In the U.S., legislators have made the calculus that increased flexibility outweighs job security.
In reality, the rights and restrictions of both new workers and employers differ very little from those affecting regular employees. All are still covered by the applications of the Fair Labor Standards Act of 1928, including key elements such as minimum wages, discrimination and workers’ compensation.
There are a host of other names for the concept, some designed to sound less intimidating. Probation may be labeled as orientation, training, initiation, eligibility or an introductory period, but the underlying principles are similar. The period usually spans one to six months, most commonly 90 days, and can be extended if necessary.
During probation, companies can still fire and workers can quit. And employers cannot avoid wrongful termination lawsuits just because the probation is ongoing; employees gain no added security after probation, although some misconstrue their status to believe they do.
Diluting trust and goodwill
Does probation give employers a better shake than employees? Is it a ploy to counter ineffective hiring? Are companies taking advantage?
Workers may not have access to a few benefits during probation. For example, if the company decides to let them go, they may lose eligibility for their new employer’s unemployment benefits. Some firms also delay health insurance or pay smaller benefits. In addition, recent hires may not receive their full sign-on bonuses.
Other than relatively minor delays, the main downside is an erosion of trust from the git-go — a moment when firms are eager to impress employees with the cohesion of their office culture. On one hand, management is paying lip service to the myth that these newly engaged team members are joining a big, friendly corporate family. On the other, it can be uncomfortable to still feel unproven during evaluations. Companies might also lose out if the stigma associated with a probation period discourages talented candidates from applying. In particular, someone who might need to relocate from another city may be less inclined to risk an upheaval in their life. Others may continue to keep alternative job applications open, just in case.
Managers contend that the trial time does provide concrete advantages for serious employees. They would argue that the new hires will be receiving extra support, attention, training and feedback during onboarding, including weekly performance evaluations and check-ins. It can be unsettling, they say, to drift in limbo at a new job, so an introductory stage encourages management to pay extra attention to starting workers’ needs.
Facilitating the process
When organizations remain committed to probationary trials, management can follow a few guidelines, such as:
- Applying practices consistently with no exceptions.
- Consulting an attorney to ensure the policies are properly drafted and implemented.
- Establishing a paper trail if you must fire someone, in case your reasons are challenged as unfair dismissal.
- Including a disclaimer in the employee handbook, and always using clear language in defining at-will employment and termination.
On a personal level, managers who hope to construct a positive relationship with their new employees may gain extra points by leveling with them. Suggest to them that they should regard probation as a formality, not a make-or-break test. Add that if they make genuine efforts, their probation status won’t make much difference.