Probationary periods are a tool long used to test the viability of job candidates. They can provide a window into an employee’s suitability and qualifications for a position. In an economy that continues to have high unemployment, recent graduates, those looking to change careers and those interested in a specific company may be particularly open to a probationary period that lets them get their foot in the door. However, without adequate protections, when completed, a probationary period may create an expectation on behalf of the new employee – and, more importantly, in the eyes of a court – that the employee cannot be fired at will. This is just one of several reasons you might consider eliminating probationary periods as a hiring tool, unless your company has a unionized workforce.
This is not to say that probationary periods cannot serve a useful purpose, particularly when an employer has a unionized workforce. Under most collective bargaining agreements, employers can terminate employees only if they can demonstrate “just cause” and exhaust the grievance or arbitration procedures. But when an employer has negotiated for a probationary period for new hires as part of its collective bargaining agreement with a union, a new hire can be terminated during that period consistent with the employment-at-will standard, meaning that the employer can terminate the employee for any legal reason or no reason at all. Given how difficult it can be to terminate a union employee, negotiating a probationary period clause into a collective bargaining agreement can be an extremely valuable tool to ensure that you are hiring the right employees for the job – especially if you may have to live with them for a long time.