Key Takeaways:

  • The 90-day probation period allows employers to assess a new hire’s performance and cultural fit while providing employees with the chance to demonstrate their capabilities.
  • This period often determines eligibility for certain benefits and impacts the employee’s job security, though it does not remove at-will employment protections in most states.
  • Clear communication, structured feedback, and comprehensive documentation are critical for a successful probationary period.
  • Employers must be cautious of legal risks, including wrongful termination claims and perceived contractual obligations.
  • Alternatives to traditional probation periods include structured onboarding programs and performance reviews at key milestones.
  • Evaluating performance metrics, providing mentorship, and creating tailored development plans can enhance the effectiveness of a 90-day probation period.
  • Misconceptions around probation periods, such as guaranteed job security after 90 days, can lead to confusion and legal complications.
  • Consulting with an employment attorney through UpCounsel can help ensure your probation policy aligns with federal and state regulations.

What Is a 90-day Probation Period for New Hires?

A 90-day probation period for new hires is a defined period during which a new employee receives additional management support and training to learn a new job.

The Purpose of a Probationary Period

The purpose of a probationary period for new hires is to postpone or adjust the customary employment rules for an employee who is learning about and adapting to a new job. It’s a period dedicated to helping the new employee be trained for the position in a learning environment.

Initial Employment Probationary Periods

Probationary periods are typically used by a company that has collective bargaining agreements with unions requiring employers to have “cause” to terminate an employee. Some companies use a probationary period to reflect their benefit waiting periods.

Probationary periods are typically suitable in union environments. However, in non-union settings, they are appropriate only if the employer can identify significant differences between an employee on probation and one who has completed the probationary period.

If a company has no reason or program for a probationary period, a good option is to consider implementing an initial review period where the supervisor or manager can offer standard, planned, productive feedback to the new employee.

Performance Metrics and Evaluation During the 90-Day Probation Period

Evaluating a new hire’s performance during the 90-day probation period is crucial to making informed employment decisions. Employers should establish clear, measurable performance metrics tied to the employee’s job responsibilities. These metrics may include:

  • Quality of Work: Accuracy, attention to detail, and output standards.
  • Productivity: Meeting deadlines and achieving set targets.
  • Collaboration: Effective teamwork and communication with colleagues.
  • Adaptability: Ability to learn new systems and adapt to company culture.
  • Initiative: Willingness to seek solutions and contribute ideas.

Regular check-ins should be scheduled to track progress against these metrics. Employers may conduct a 30-day review, a midpoint assessment, and a final 90-day evaluation to ensure the employee is meeting performance expectations.

Opportunities and Risks of Employment Probationary Periods

A number of companies pay new hires less during the 90-day probationary period. Often benefits aren’t available during the first 90 days of employment.

Some companies pay the agreed-upon salary rate during the first 90 days, but then choose to reclassify them as temporary workers. This reclassification makes those employees disqualified for severance and unemployment insurance benefits.

If an employee is terminated during the 90-day probationary period, they would still qualify for unemployment insurance benefits, but the length of employment could be a factor in calculating how much the employer will be monetarily impacted by the employee’s unemployment claim.

The fact that an individual was terminated during an introductory period would not disqualify the employee from unemployment benefits, and the same rules regarding eligibility for unemployment still apply.

Alternatives to the 90-Day Probation Period

While a 90-day probation period is common, some companies are shifting to alternative onboarding and evaluation methods:

  • Structured Onboarding Programs: A comprehensive onboarding plan with clear milestones often reduces early turnover and boosts performance.
  • 30-60-90 Day Review Plans: Instead of labeling the first three months as “probation,” some companies use milestone reviews at 30, 60, and 90 days to provide structured feedback.
  • Trial or Temp-to-Perm Employment: Offering an initial temporary position with the option to transition to a permanent role provides flexibility for both parties.
  • Performance-Based Advancement: Employers may set specific performance goals tied to eligibility for permanent status or additional benefits, emphasizing merit over time-based assessments.

These alternatives can alleviate employee anxiety associated with “probation” language and foster a more collaborative development process.

Legal Risks of Using Probationary Periods

In the United States, employment relationships are acknowledged to be at-will in all states except Montana, where employers can usually only terminate employees for good cause once the employee has completed the employer’s probationary period.

For that reason, it is essential that all employment documents, including the employee handbook, evaluation reports, employee development plans, and hiring regulations, clearly define the probationary period. It's also important to educate all employees on the probationary period, specifically as it relates to the employer's right to fire any employee during that time for any reason. As long as your company's documentation clearly defines and states these terms, your probationary period is in good-standing. If an employer promises an employee something that is inconsistent with the at-will employment guidelines mentioned above, they can lose the right to the probationary period.

Compliance Considerations for Multi-State Employers

Employers operating in multiple states must recognize that probationary periods are viewed differently depending on state labor laws. For example:

  • California: Employees are generally considered at-will, but improper documentation or inconsistent application of probation policies can lead to wrongful termination claims.
  • Montana: After a six-month probationary period, employees gain protections against termination without good cause.
  • New York: At-will employment is standard, but verbal promises or poorly worded offer letters can inadvertently create implied contracts.

Employers should ensure that probation policies are aligned with state-specific laws and that managers are trained consistently. Consulting an employment attorney can help mitigate risks when developing a uniform policy across jurisdictions.

Tips for Successful Use of Probationary Policies

The employer should clearly communicate with the new employee about the 90-day probationary period regarding what is expected of the employee during that time.

A reputable and qualified mentor should advise the employee on policies and procedures, train them in equipment operation as necessary, and provide them with adequate training and other resources.

A direct manager or supervisor should conduct customary intermittent reviews with the employee to provide constructive criticism and counseling.

All parties involved in orienting the new employee should get advice from the human resources or legal department to ensure the new hire is being treated equitably and given appropriate leadership.

Coaching efforts, employee performance comments, and provided training during the 90-day probationary period should be carefully and fully documented.

Onboarding Best Practices to Support New Hires During the Probation Period

A well-structured onboarding process significantly enhances the likelihood of a successful 90-day probation period. Key best practices include:

  • Orientation: Provide a thorough overview of company policies, culture, and job responsibilities.
  • Mentorship Pairing: Assign a seasoned employee as a mentor to guide the new hire through the initial months.
  • Frequent Feedback: Conduct weekly or bi-weekly feedback sessions to address concerns and reinforce positive behaviors.
  • Training and Development: Offer access to training materials, workshops, or online learning resources to support skill development.
  • Progress Milestones: Set clear, short-term goals to help employees gauge their progress and stay motivated.

Combining these practices with a transparent probationary policy fosters a supportive environment, improving employee retention and performance.

Common Misconceptions About Probationary Periods

Employees often believe that once they successfully complete a 90-day probationary period that their risk of termination disappears. This misconception can lead to an increased threat of wrongful termination lawsuits if the employee is fired after that 90-day stretch.

Another common misunderstanding by new employees is that the probationary period means that they are instantly placed on a corrective action plan on the first day of employment, a misconception that could harmfully impact the employee’s view of the company.

Addressing Employee Concerns During the 90-Day Probation Period

Employees often enter the probation period with concerns about job security and expectations. Employers can alleviate these worries through proactive communication:

  • Clarify Expectations: Clearly outline performance standards, behavior expectations, and evaluation timelines during onboarding.
  • Open Dialogue: Encourage employees to voice questions or uncertainties about their role or the probation process.
  • Reinforce At-Will Status: Emphasize that employment is at-will, even after completing the 90-day probation period, while highlighting the company’s commitment to fairness and development.
  • Acknowledge Achievements: Recognize progress and accomplishments during the probation period to foster morale and motivation.

Addressing these concerns helps build trust and strengthens the employer-employee relationship from the outset.

Frequently Asked Questions:

1. Is a 90-day probation period mandatory for new hires?

No, a 90-day probation period is not legally required but is a common practice for employers to assess new hires.

2. Does completing the probation period guarantee job security?

No, completing a 90-day probation period does not guarantee job security. Most employees remain at-will and can be terminated at any time.

3. Can an employee receive benefits during the probation period?

Some employers delay certain benefits like health insurance or retirement plans until after the probation period, though this practice varies by company.

4. What happens if an employee underperforms during the probation period?

Employers may choose to extend the probation period, offer additional support, or terminate employment if performance concerns persist.

5. How can I ensure my company’s probation policy is legally compliant?

Consulting with an employment attorney through UpCounsel can help ensure your probationary policies comply with state and federal labor laws.

If you need help with 90-day probation period for new hires, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.