Tuesday, August 13, 2019

Public Sector Employers May Want to Re-Think Putting New Hires on a “Probationary Period”

It is common to find “probationary periods” in personnel policies. The probationary period generally applies to new hires and is usually a training period where the new hire will be supervised more closely and not permitted to act with the same autonomy as a regular employee. It tends to last for a few weeks or months, after which the employee can start to accrue benefits like vacation and sick leave.

What many public sector employers fail to realize is that these probationary periods could be setting them up for future legal trouble. A number of courts in Illinois and other states have ruled that completing a probationary period creates an expectation of continued employment, which means that the employee is entitled to a hearing before he or she can be fired or perhaps can only be fired for good cause. The courts have held that the expectation of continued employment is a property right which the government cannot deprive without due process of the law, which is what necessitates the hearing. Such hearings can be expensive and require supervisors to devote time and attention to that matter instead of work-related tasks. And many employers do not realize that they are required to hold a hearing prior to firing the employee and therefore find themselves being sued unexpectedly.

Probationary periods are unquestionably valuable, and I am not advocating that employers get rid of them. In many jobs, it makes sense to keep a closer watch on new hires and require them to train alongside more experienced employees. So, in order to keep yourself out of legal trouble while keeping the probationary period, I suggest doing the following things:
  • Rename the Probationary Period. The term “probationary period” is a term that courts have found creates an expectation of continued employment. Courts have not found, or have done so much less frequently, that terms like “training period,” “try-out period,” or “evaluation period” create an expectation of continued employment.
  • Explicitly State that the Probationary Period Does Not Create an Expectation of Continued Employment. Include in your personnel manual a sentence explicitly stating that the probationary period (which hopefully you have renamed) does not create an expectation of continued employment. State that each employee is at will and can be fired without a hearing. Employers can then argue that they made it clear to the employee that the employee should not have had an expectation of continued employment upon completion of the probationary period.
  • Expressly State that the Probationary Period Can Be Extended at the Employer’s Discretion. Doing this will make it clear that the employer is in control of the probationary period, and it is not a contract or agreement between the employer and employee in which the employee is entitled to any kind of benefit upon completion.

I suggest checking your personnel manuals, employee handbooks, and collective bargaining agreements to see whether they contain language that might imply that an employee has a right to continued employment and can only be fired for good cause. It might be worth having an experienced attorney review these agreements to make sure that there isn’t anything in them that could create future legal problems. Spending a little bit of money now on an attorney could avoid huge legal costs once a lawsuit has been filed.