Probationary Period

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:

• 30 days: Common for hourly, entry-level, or high-turnover positions where core competency can be assessed quickly
• 60 days: Provides additional time for roles that require a moderate learning curve
• 90 days: The most common duration for professional and salaried positions. Aligns well with a fiscal quarter and provides enough time for meaningful evaluation
• 6 months: Used for complex or senior roles where onboarding takes longer, or in certain industries (government, education, healthcare) where probationary periods are contractually defined

During the probationary period, the employee typically:

• Receives structured onboarding and training
• Has regular check-ins with their manager (weekly or biweekly)
• Works toward specific performance milestones
• May have limited access to certain benefits (though this varies)
• Receives a formal evaluation at the end of the period

Clear communication about expectations, milestones, and evaluation criteria from day one sets the probationary period up for success.

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:

• Completion of the introductory period does not guarantee continued employment
• Employment remains at-will at all times
• The introductory period does not change the at-will relationship
• The company may extend, shorten, or waive the introductory period at its discretion

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.

A well-structured probationary period maximizes the chances of successful onboarding:

Set Clear Expectations from Day One:

• Define 3-5 specific, measurable goals for the probationary period
• Provide a written outline of expectations and evaluation criteria
• Explain what success looks like at the 30, 60, and 90-day marks

Provide Adequate Support:

• Assign a mentor or buddy in addition to the direct manager
• Ensure the new hire has the tools, access, and training needed to succeed
• Create a structured onboarding schedule for at least the first two weeks

Conduct Regular Check-Ins:

• Weekly one-on-ones during the first month
• Biweekly meetings thereafter
• Document discussions, feedback, and progress toward goals
• Address performance issues early — don't wait until the end of the period

Formal Evaluation:

• Conduct a comprehensive review at the end of the probationary period
• Assess performance against the goals set at the beginning
• Provide written feedback
• Make a clear decision: confirm in role, extend the probationary period, or separate

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.

If a new hire is not meeting expectations, the probationary period provides a framework for making a timely separation decision:

Termination During Probation:

• The at-will doctrine allows termination at any time for lawful reasons
• Follow the same termination procedures you would for any employee (documentation, HR involvement, final pay compliance)
• Be direct and honest about the reasons while remaining professional
• Anti-discrimination laws apply fully during probationary periods — you cannot terminate for discriminatory reasons regardless of employment status

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:

• Put the extension in writing
• Specify what the employee must achieve during the extension
• Set a firm end date for the extended period
• Make clear that employment remains at-will

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.