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Probationary periods

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in Employment Law,Human Resources

Q. Our existing employee handbook includes a probationary period for newly hired employees. In revising the handbook, should we consider omitting this provision due to the possibility that we could be altering the at-will employment relationship?

A. Many California employers require new employees to complete an introductory period during which they are closely monitored and evaluated. The use of such a period enables both the employer and the employee to evaluate the worker’s aptitude for the job and compatibility with the organization.

However, use of the traditional term “probationary” period to describe this initial evaluation period has created problems for employers. Several California courts have concluded that the existence of a probationary period (in which employees clearly can be terminated at will) implies that employees who have successfully completed the probationary period may only be terminated for cause. Thus, the existence of a probationary period may undermine the employer’s efforts to preserve its right to terminate employees at will.

This result generally can be avoided by including in the handbook a provision describing the introductory period and additional language reaffirming the employer’s right to terminate its employees at will, either during or after the introductory period. Employers also have found it useful to describe the introductory period as a “training” or “orientation” period, rather than the more traditional probationary period.

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