New Hire Introductory Periods
Do you offer an Introductory Period at your organization? Last week, we had a situation with a recent hire that prompted me to look at where his hire date fell in relation to our Introductory Period. We have a 90-Day Introductory Period. While we use this time to help new hires begin to learn and assimilate into their new role, we're inconsistent in the sense that we tend to focus more energies around our entry-level positions, rather than all positions, during this time frame.
You Can Teach An Old Dog New Tricks
I decided to research 'Introductory Periods' and I quickly discovered that what I had learned years ago, and professed to all who would listen, about being on safer ground by terminating a new hire within the 90-Day 'Introductory Period' was not true. In fact, as Amara Marcoccia in Beware of the Initial Employment Probationary Period, states, "A probationary or introductory period can be more harmful than helpful. It may create an unintended legal consequence. The most significant downside is the effect on the employment-at-will doctrine (which means we can all be fired for any reason that is not illegal), which is law in my state of Virginia and most other states. Some courts may imply a contract of employment that only allow terminations for cause if an employee passes their introductory period and has continued employment. Therefore the introductory period that you thought would allow you to terminate an employee more easily may actually make termination more difficult."
The thinking behind this is that if after an employee passes the 90-Day Introductory Period, an employee may expect that he will continue to be employed if he successfully completes the Introductory Period. For this and other reasons, many employers don’t use Introductory Periods.
History Behind Introductory Periods
Marcoccia adds, "Probationary or Introductory periods are almost always appropriate in union environments." This may account (at least in part) for the origin and adoption of Introductory Periods in non-union environments. In non-union environments, probationary periods are only appropriate if an employer can identify significant differences between someone on probation and someone who is past it.
So, if you must have an Introductory Period, make sure your policies clearly identify the significance of it. If you cannot identify significant differences between an introductory employee and one who has completed his introductory period, you should consider discontinuing or not implementing the policy all together. HR practitioners and lawyers versed on this topic recommend that you should consult with legal counsel on how courts in your state have determined the legal implications of having an Introductory Period.
The Bottom Line
Lisa Guerin, J.D. in What is a Probationary Period and How Does It Work, writes, "If you wish to keep your Introductory Period, take steps to make sure that employees know that they can be fired at any time. All employment documents that reference the Introductory Period, including the employee handbook, performance appraisals, performance improvement plans, hiring paperwork, and so on, should clearly state that the probationary period does not change the at-will employment relationship. These documents should clearly state that an employee may still be fired for any reason at any time, during the introductory period or after it."
There is no way to fully insulate your organization from liability in any termination. Using an Introductory Period only complicates matters. If you don’t have a reason and a curriculum for an introductory period, it’s best to discontinue or not implement a probationary period.
Instead, consider implementing an initial review period where you will provide regularly scheduled, constructive feedback to the new hire. Frequent, documented feedback, will help employees understand how well they fit into the company and will support employers in the event an employee needs to be terminated.
Principled HR Consulting, LLC
Beware of the Initial Employment Probationary Period, TriNet, by Amara Marcoccia, May 7, 2014
What is a Probationary Period and How Does It Work?, Lawyers.com, by Lisa Guerin, J.D., Boalt Hall at the University of California at Berkeley