90 Day Probation for New Hires: Everything You Need to Know

Key Takeaways:

• The 90-day probationary period is a trial phase for both employer and employee.

• Employees can be fired at-will during the probationary period unless contractually protected.

• Missing work during this period can lead to termination if not handled properly.

• Eligibility for unemployment benefits depends on state laws and reason for termination.

• Documentation and clear communication are crucial for employers during the probation period.

The first 90 days of starting a new job is probably one of the most important periods–for both employees and employers alike. Commonly known as the 90-day probationary period, this is the time duration when employers assess whether a new employee is a good fit for the company in terms of skills, attitude, and cultural alignment. 

This begs the question: can an employee be fired during the 90-day probation period? What rights to do employees have when they are on probation, and what legal compliance must employers follow? Let’s find out below.

Can You Be Fired During the 90-Day Probationary Period?

In most U.S. states, employment is at-will, which means an employer can terminate an employee at any time, with or without cause, as long as it’s not for discriminatory reasons. This could happen during the 90-day probationary period, or any time after the probation as well.

The main reason why the 90-day probation is so important for new hires is because during this time, their performance is very closely monitored and evaluated by the employer and they may not receive the full benefits of the employment until they pass the probation. However, even if the employee passes the probationary period, the employer has the right to terminate the employee at any time following all legal guidelines. 

That being said, the terms of a probationary period may also depend on a company’s specific policies or any terms mentioned in the employment contract. For instance, some employment contracts or union agreements may include clauses that provide extra protections during the probationary period. 

What Happens If You Miss a Day of Work During the Probationary Period?

Absenteeism has serious consequences for all employees–regardless of how long they have been working for the company. Since a new employee who is on probation would be under greater scrutiny than most, missing a day of work during the probationary period may not reflect well on their performance. If not handled professionally, it may lead to termination.  

One way to resolve this issue is by communicating any leave of absence effectively with the employer in advance. If it is not possible to give an advance notice, the employee should clearly explain the reasons. Most employers would be understanding if the cause for absence is legitimate–such as a family emergency or health issues.

Unemployment If Fired During 90-Day Introductory Period

It’s reasonable for an employee to worry about unemployment benefits if they are fired during their probationary period. In most cases, being terminated while on probation does not automatically disqualify an employee from receiving unemployment benefits. 

There are many factors that determine whether an employee can be eligible for unemployment benefits, including:

• State unemployment laws: Laws regarding unemployment benefits vary across the U.S., so it’s essential to check with the state’s unemployment office.

• Reason for termination: If an employee was fired for misconduct, they may not qualify for unemployment benefits. However, if the employee was terminated due to poor performance or because they did not fit the role, they might still be eligible.

• Length of employment: Some states require that an employee has worked for a minimum period before qualifying for unemployment.

Legal Considerations for 90-Day Probationary Periods in All States

While the 90-day probationary period is widely used, employers must be aware of the legal considerations associated with it. Even though most states operate under at-will employment laws, employers can still face legal risks if they don’t implement the probationary period correctly.

Here are some best practices for employers:

1. Clear communication: Employers must ensure that the probationary period is clearly communicated to new hires during onboarding and that all expectations and contractual obligations have been explained. 

2. Proper documentation: In order to terminate an employee during or after the probationary period, employers must give prior warning and have documentation of performance reviews and meetings to justify the termination. Not having documentation can lead to expensive lawsuits and complications. 

3. Avoid discrimination: Employers must ensure that they are not terminating employees during the probationary period for reasons related to discrimination or retaliation, as this could result in a lawsuit. Having proper documentation can also help employers to make the termination decision without internal bias.

90-Day Probationary Period in California

The state of California operates under at-will employment, meaning employees can be terminated at any time, including during the probationary period. However, California has specific labor laws that employers must follow, making it one of the more regulated states in terms of employment law.

Here are some things to keep in mind if you’re working in California:

• Protection from wrongful termination: Employers should maintain clear policies and documentation during the probationary period to protect themselves from potential wrongful termination claims.

• Discrimination and retaliation protections: California offers additional protections against discrimination and retaliation during the probationary period. Employers must ensure they are not firing someone for discriminatory reasons, even if the employee is still within the probationary period.

Tips for Employers: Managing a Successful 90-Day Probationary Period

For employers, managing the probationary period effectively can lead to better long-term hiring decisions. Here are some tips for ensuring a successful 90-day probationary period:

1. Provide training and mentorship: The purpose of the 90-day probationary period is to test the new employee’s skills, but also to help them adapt to the company’s day-to-day activities. Employees must ensure that new hires have the necessary resources, training, and support to adjust to their role and meet the company’s expectations regarding their performance.

2. Conduct regular evaluation: Employers should schedule regular meetings with the new hire to provide feedback and track their progress. This not only helps the employee improve but also gives employers a chance to address any issues early on. This is because even during the probationary period, employees cannot be terminated without prior warning or cause.

3. Keep proper documentation: Whether the new hire is doing well or struggling, documenting performance throughout the probationary period is crucial. This can protect the employer in the event of termination. It can also be useful for performance appraisals and promotions.

4. Set clear expectations: Employers should make sure the new hire knows what is expected of them during the probationary period, including job responsibilities and performance metrics. Any KPI that the employee needs to meet during the probationary period should be explained to them clearly.

Common Misconceptions About the 90-Day Probationary Period

There are several misconceptions about the 90-day probationary period that both employees and employers should be aware of. 

The most common misconception is that employees cannot be fired after the probationary period. As mentioned earlier, this is not true. Even after the 90-day probationary period ends, the employment will remain at-will.

Another common misconception is that passing the probationary period guarantees full benefits. While most companies do offer full access to benefits after probationary period, some companies may only offer certain benefits when specific conditions have been met. For instance, some companies may only offer a share of profits to employees if they were employed for more than one financial year. 

Finally, another common misconception is that probationary periods are mandatory for everyone. While it is definitely common for most employees, some highly experienced or skilled employees hired for specialized roles may be exempt from going through a 90-day probationary period, depending on the company’s policies. 

Final Thoughts

As you can see, the 90-day probationary period is a vital phase in the employment process, allowing both the employer and employee to evaluate the fit. For this reason, both employers and employees should be vigilant about their responsibilities during this time. Whether you are an employee or an employer, having a clarity about your responsibilities and rights can protect you from legal complications.