Washington Labor Law Blog: Insights on the Law for Washington Employers

Avoid the use of a “Probation Period”

In my last post, I talked about firing employees during their first 90-days. There is a danger employers need to be aware of when referring to this initial period as a “probation” period.

One way employers alter the “at-will” employment relationship is by an express or implied promise, often in a handbook, not to fire employees unless the employer has a good enough reason for doing so, usually called “good cause.” A court could use your use of a “probation period” as a promise, by implication, that once an employee gets beyond the “probation period,” he or she cannot be discharged unless the employer has “good cause.” (And, in fact, this is often what union contracts provide.)

Here is the reasoning that an employee’s lawyer would likely use to file a lawsuit. During the 90-day “probation period,” everyone agrees that the employee can be fired for any reason. Once the employee passes the “probation period,” though, the employee must have some greater rights than before passing through that period. Unlike while in the period, the employee now cannot be fired unless the employer’s reason is a good enough one. The existence of the “probation period” is, in effect, an implied promise not to fire employees who have completed the period absent good cause. As a result, the employee can file a lawsuit to have a judge or jury decide whether that reason was good enough to justify discharge or whether the employer wrongfully fired the employee without good cause.

There are counter arguments employers can make. But to reduce the risk of this becoming an issue in litigation, avoid having a “probation period” in your handbook and train supervisors not to refer to a any “probation period” in day-to-day language.

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