Probationary Period
A probationary period (also called an introductory or trial period) is a defined timeframe at the beginning of employment during which a new hire's performance, skills, and cultural fit are closely evaluated. Typically lasting 30 to 90 days, probationary periods give both the employer and the employee an opportunity to assess whether the role is a good match.
Purpose and Duration
Probationary periods serve as a structured evaluation window for new hires. During this time, the employer can assess the employee's abilities, work ethic, reliability, and compatibility with the team before confirming permanent employment.
Common Durations:
During the probationary period, the employee typically:
Clear communication about expectations, milestones, and evaluation criteria from day one sets the probationary period up for success.
Legal Considerations
Probationary periods are widely used but legally misunderstood. Key legal considerations:
At-Will Employment: In at-will states (49 out of 50), a probationary period does not change the fundamental employment relationship. Both the employer and employee can end the relationship at any time, for any lawful reason, with or without notice — before, during, or after the probationary period. The probationary period is a management tool, not a legal contract.
The Implied Contract Risk: The biggest legal danger is that a probationary period may inadvertently create an implied contract. If an employee handbook states that "employees who complete their probationary period become permanent employees," a court may interpret this as a promise that post-probationary employees can only be terminated for cause — effectively eliminating at-will status.
Best Practice Language: Use terms like "introductory period" rather than "probationary period" (which implies a change in status). Clearly state that:
Benefits Eligibility: Employers can delay certain benefits until after the probationary period, but must comply with the Affordable Care Act (ACA) waiting period rules. The ACA limits the waiting period for health insurance to 90 days for eligible employees. Other benefits like 401(k) enrollment, PTO accrual, and tuition reimbursement can have longer waiting periods.
Structuring an Effective Probationary Period
A well-structured probationary period maximizes the chances of successful onboarding:
Set Clear Expectations from Day One:
Provide Adequate Support:
Conduct Regular Check-Ins:
Formal Evaluation:
Document Everything:
Maintain written records of goals, check-in notes, performance feedback, and the final evaluation. Documentation protects the employer if the employee is terminated and disputes the decision.
Ending Employment During a Probationary Period
If a new hire is not meeting expectations, the probationary period provides a framework for making a timely separation decision:
Termination During Probation:
Extending the Probationary Period:
Some employers offer an extension (typically 30 additional days) when the employee shows promise but hasn't fully met expectations. If extending:
Resignation During Probation:
Employees may also determine during the probationary period that the role isn't right for them. While notice isn't legally required in at-will states, professional norms suggest providing at least two weeks when possible.
Unemployment Benefits:
Employees terminated during a probationary period may still be eligible for unemployment benefits depending on state law and the reason for termination. Being in a probationary period does not automatically disqualify someone from unemployment.
Frequently Asked Questions
Is a probationary period legally required?
No. Probationary periods are not required by federal or state law in the private sector. They are a voluntary employer practice. Some government positions, union contracts, and certain regulated industries may mandate probationary periods as part of their employment framework.
Can an employer extend a probationary period?
Yes, employers can typically extend a probationary period if the employee shows potential but hasn't fully met performance expectations. The extension should be documented in writing with clear expectations and a defined end date. Maintain at-will language throughout.
Do you get benefits during a probationary period?
It depends on the employer's policy. Many companies delay certain benefits (401(k), additional PTO, tuition reimbursement) until after the probationary period. However, health insurance waiting periods are limited to 90 days under the ACA. Legally mandated benefits like workers' compensation and unemployment insurance apply from day one.
Can you be fired during a probationary period without warning?
In at-will employment states, yes — an employer can terminate an employee during a probationary period without warning for any lawful reason. However, best practice is to provide feedback and document performance issues throughout the period. Surprise terminations suggest a failure of the evaluation process, not just of the employee.
Set new hires up for success with RecruitHorizon's onboarding and performance management tools. Define probationary goals, automate check-in reminders, and track milestones from day one to confirmation.
Related Terms
Employee Onboarding
Employee onboarding is the process of integrating new hires into an organization, covering everything from paperwork and training to culture orientation and role-specific setup.
At-Will Employment
At-will employment is a legal doctrine allowing either the employer or employee to end the employment relationship at any time, for any lawful reason, with or without notice.
Employee Handbook
An employee handbook is a comprehensive document outlining a company's policies, procedures, expectations, and benefits, serving as both a reference guide and legal safeguard.