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Beware the Probationary Employment Period
Many private employers have provisions in their employee handbooks or offer letters providing that new employees will be subject to a so-called probationary period. Though the length of the probationary period may vary from employer to employer, the general idea is that, during a certain delineated initial period of employment, the employee is in a trial period during which he or she is being examined to see if the employer wants to keep the employee on as a “regular” ' or as some employers unfortunately call it, a “permanent” employee. If the new employee either performs his or her job duties unsatisfactorily or does not turn out to be a “good fit,” the employer either will terminate him or her at the end of the probationary period or, in some cases, extend the probationary period. Employers often labor under the misconception that they can discipline or terminate a probationary employee with no legal risk. This, however, is not the case.
Probationary Status Alone Is Not the Answer
Probationary periods are not the panacea that many private employers think they are. Unlike in the public sector where probationary status limits an employee's ability to contest her termination, in the private sector, probationary employees have the same rights under applicable law as any other employee, and can bring the same type of legal claims as a regular employee. In other words, terminating a probationary employee in the private sector presents the exact same legal risk as terminating any other at-will employee. As one judge put it, “[u]nder the common law principles of at-will employment, an employer is free to terminate a 32-year employee ' just as it is free to terminate a probationary employee with just a few months under his belt ' for good reason, bad reason or no reason at all.” Bellas v. CBS, Inc., 211 F.3rd 517 (3rd Cir. 2000).
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