Are Your Probationary Employees First-Round Picks Or Will They Be Cut From The Team?

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
AUTHOR: Danny Y. Yoo
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: May 18, 2021

The National Football League just completed its annual draft, in which the 32 NFL teams select collegiate players from around the country to compete for a spot on their rosters.  Prior to the draft, the teams spend time scouting, evaluating, and assessing these players.  Soon, the newly drafted players will have a chance to practice with the team and demonstrate whether they have the skills and talent actually to make the team.  Unfortunately for some, they may eventually be cut.

While it is probably not as high-profile or large in scale, public employers also go through a hiring process, in which they conduct interviews and background checks.  If an individual is lucky enough to be hired at a public agency, then they may also have to go through a probationary period in order to avoid being “cut from the team.”  Generally, a probationary period is the initial period of time after the employee begins employment.  There is no required period of time, but we typically see them as little as six months and as long as 18 months.

For public employers, probationary employees are usually classified as “at-will,” which means that they could be released from probation without cause.  However, even though an agency does not need a reason, the agency should be prepared to defend its decision.  The decision to release any employee clearly should never be discriminatory or retaliatory, or for any other unlawful reason.  The decision should still be based on legitimate business reasons, such as poor performance, operational needs, or economic concerns.

Regular Evaluations During the Probationary Period

A useful tool for public employers are regular evaluations within the probationary period.  For example, if your agency has a 12-month probationary period, your agency may want to have probationary evaluations every three months.  Regular evaluations allow the employer to provide feedback and describe areas for improvement so that probationary employees know where they stand throughout the probationary period.  This will help both the employer and the probationary employee work together to understand what is expected of the employee and provide any support, if necessary, to the employee.   Having regular evaluations also creates a record of any poor performance if the agency decides to release the employee.  An early negative evaluation may even justify the release of an employee earlier on in the probationary period.

Extending the Probationary Period

Agencies may have rules or policies to extend a probationary period.  Typically, employers will extend a period for the time that an employee is on a leave of absence.  Also, some agencies may have the discretion to extend the period.  If your agency finds itself regularly extending probationary periods, then you may want to consider alternatives.  First, perhaps your agency may want to consider a longer probationary period to give yourself sufficient time to evaluate the employee’s performance.  Second, perhaps your agency may want to train your supervisors to make the difficult decision to release an employee from probation.  If the reason for the extension is to give probationary employees more time to “prove” themselves, then the agency may want to discuss why the employee was unable to do so in the initial probationary period.

Consequences of Allowing a Poorly Performing Employee to Pass Probation

Typically, if a public employee passes probation, then they may have due process rights to continued employment, which will not only affect the public employer’s ability to separate the employee but also to discipline them.  So, if a public agency allows employee who has poor performance during the probationary period to pass probation and the poor performance continues, then the agency will potentially have to spend significant time and resources to address these performance issues.  This highlights the importance of taking the probationary period seriously and evaluating employees as best as you can.

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If your agency is faced with the decision of releasing a probationary employee, it can be helpful to seek legal advice.

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