Many employers set aside a certain time period for new employees as an introductory or probationary period to determine the new employee's suitability for the job. During this period employers have the opportunity to assess the performance of new employees – both their job skills and their "fit" with the employer's culture. Practically speaking, there is no particular distinction between introductory and probationary periods, but "probationary" has a punitive ring to it - as if problems are expected – so most employers prefer to designate these periods as "introductory" periods.
The purpose of the introductory period should be explained to the new employee, so that the employee can come to grips with the fact that he/she will have to fit the job and the culture before the end of the period. With this understanding the new employee should not be surprised if the employer decides, before the end of the introductory period, that he/she is not a good fit. If used effectively the introductory period can provide a way for the employer to minimize its legal exposure for termination of the employee.
So what is the downside to having introductory periods for new employees? One drawback is the potential implication that there is an increased level of job security after the period ends – an implication that is inconsistent with employment-at-will. From a legal perspective, if an employer has an employment-at-will relationship with its employees, the employer has the right to terminate an employee for any lawful reason at any time, whether during or after the introductory period. But employees may consider themselves "permanent" after they complete an introductory period and believe and expect they will not be terminated except "for cause."
Since one's level of expectation is generally proportional to the level of disappointment experienced when that expectation is not met, litigation is often the result. So what can an employer do to avoid inadvertently raising expectations of job security after the completion of an introductory period?
First, clearly articulate the reasons for an introductory period without implying there is an increased level of job security upon completion. Second, include a disclaimer in the policy explaining that the employee's at-will status continues after completion of the introductory period. Third, have a completely separate at-will policy and include appropriate at-will disclaimers in other policies such as disciplinary policies.
In the end if an employer decides to have an introductory period, it is important for the employer to make sure it communicates a clear understanding of the purpose of the introductory period to new employee, and correctly words its policies to preserve their employment at-will status, so that this can be an effective evaluation and decision-making tool to help the employer make early decisions that can cut its losses down the road.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
