Employers, are you expecting too much from your "probationary period"?
My colleague Heather Bussing has already written well about how "probationary periods" can giv e employees the impression that they can't be terminated except for "cause" once the probationary period has ended.
In addition, the probationary period may give employers a false sense of security.
A hotel in Charlottestown, Prince Edward Island, was in the news recently because management fired an administrative assistant/desk clerk within one hour of her announcement that she was pregnant.
The hotel says that the former employee was not terminated because of her pregnancy, but because of pre-existing problems with her work performance and an inability to get along with her supervisor. According to the hotel, the decision to terminate the employee had actually been made a couple of weeks before she was terminated (and, more importantly, before the hotel had any reason to believe that she was pregnant).
Normally, this is a good defense.
But not always. Like, not when you don't have any proof apart from "scout's honor" that the decision had been made earlier.
In this case, unfortunately for the hotel, the employee was in her "probationary period," and the employer didn't think it had to document any of her issues or even meet with her to let her know that she wasn't meeting their standards.
For some holiday cheer (well, "cheer" may be an overstatement, but for some excellent holiday-themed blog posts), please visit the December Employment Law Blog Carnival:Holiday Edition, hosted by Ari Rosenstein of CPEHR. The carnival includes my post, "10 reasons for employers to be jolly about the ADA." Ari, thank you for including us, and you did a great job!
So, it will be their word against hers that the hotel made the decision to terminate before she announced her pregnancy. And, as the employer itself admits, the timing of the termination was a bit . . . problematic.
I tweeted to Jillian that this employer would be in big trouble in the United States, and she said that same was true in Canada.
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* Even cowgirls get the blues, and even probationary employees have rights under the anti-discrimination laws. If an employee is terminated for a reason that violates the law, the fact that he or she is "probationary" is not going to help you, the employer, one whit.
* As Heather has pointed out, having a probationary period may cause your employees to believe that they are no longer "at-will" once the probationary period ends. (Not that an employee is ever "at-will" anyway. See comment about Nigerian prince, above.) An employee misunderstanding may not have legal consequences depending on where you are, but in a state like California, it probably does.
So, what can an employer do? If anything?
*It's usually fine for benefits not to kick in until the "probationary" period is completed, and you can even say that in your handbook if you have one.
*Even here, you may have to make exceptions for absences associated with "disabilities" within the meaning of the ADA.
NOT THIS: "We do not make reasonable accommodations for probationary employees."
OR: "Only regular employees may make complaints of workplace harassment or unlawful activity in the workplace."
OR: "Only regular employees may complain about their terms and conditions of employment."
Of course, if you are going to terminate a probationary employee under your "easy" (but legal) termination standard, you'll also need to have some evidence that the employee failed to meet the "easier" standard, such as attendance records, or documented warnings, or something besides your word. Yes, this is true even if the employee is "probationary."
Our PEI employer is learning that lesson the hard way.