What I’m reading – High Crimes
What I’m looking forward to – Fall conference season: #ELGLRoadTrip, NEOGOV, ICMA
As I reached my one-year anniversary a lot of coworkers commented “You made it through probation! Way to go!” Being the classic buzzkill that HR can be, I typically respond with: “Probationary periods are a joke.” Enter quizzical looks and debates about working in an “at-will” state.
A probationary period, sometimes called an orientation period or a trial period, is supposed to be an opportunity for the employee and the organization to determine if they’ve got a good fit. Sometimes there are rules that follow a probationary period like not being able to use vacation time or maybe a lower wage/salary that will be increased at the successful completion of a probationary period. The language in an offer letter or employee handbook is where that disconnect I described above hits:
“The employee or employer may choose to sever employment at any time during the probationary period for any reason or for no reason at all.”
This language is standard “at-will” language. Oregon is an “at-will” state so even after a probationary period an employee can be let go just because! What that “at-will” language does not mention, which causes the confusion I mentioned above, is that if an employer lets someone go for no reason at all, there are a lot of potential reasons for that former employee to file a lawsuit. Fire people all you want but be prepared to deal with the lawsuits that will pile up.
When you’ve fired someone for no reason, the former employee can (and probably will) think of reasons to file a wrongful termination lawsuit. In Oregon almost everyone is in a protected class so if you haven’t provided a reason that a jury would see as legitimate, you’ve essentially given the former employee the chance to make that reason up. Are they the only (woman, man, non-binary person, person of color, person with a disability, religious person, etc.) person in the department or organization? Congratulations on losing your wrongful termination lawsuit!
Here’s my advice for how to handle unsuccessful probationary periods:
- Document everything. Do they come in late all the time? Do they miss deadlines? When they do, have the coaching conversation and document it. Use the Same Day Summary tool to help you do that.
- State and restate your expectations as a manager. Document those conversations.
- Engage your HR department early and often. If it’s clear that it’s not working out, get HR in the loop. They’re going to review your documentation and give you the thumbs up/thumbs down on the termination. If you’ve properly documented you’re likely getting the thumbs up.
- Engage PreLoss Legal. These are the attorneys that will defend that inevitable wrongful termination lawsuit. Your HR department will likely take care of this for you. If you don’t have HR, you may need to contact them yourself.
- Make it a “good” termination. Even though the employee didn’t work out in your organization, you want them to have a good impression of where they worked. Conduct the termination meeting in a respectful way, have their final paycheck ready, and provide them with a termination letter outlining the reason for their termination.
- Want to make it an even better termination? Consider a separation agreement with a reasonable severance that includes a “release of all claims.” Some employers are against separation agreements, others aren’t. I think they serve a good purpose and can be used to minimize the negative impacts of a termination.
Now, go forth with this new knowledge that probationary periods are kind of a sham, document everything, and tell your HR department you love them.