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Employee Probation - The "Last Chance to Make Good"

January 2004
By Jonathan Fraser Light

You've had it with your employee. He screwed up again and you are ready to terminate, but he presents certain "risks" to an immediate termination: he just came back from disability leave, he has a continuing worker's comp claim, and he is older than most of your workers.

You may have already prepared a "catch-up" disciplinary memo that describes the current problem and summarizes problems over the last several months that you did not previously document. Paperwork is crucial when it comes to justifying reasons for termination and defending lawsuits, regardless of whether an employee is "at-will" or in an introductory period. So you have decided to help minimize your risk by giving the employee one last chance with a formal written probationary memo. What should it look like?

Identify problems using examples. Employers often provide broad generalizations that, when tested, do not have enough detail to back them up. Be specific.

• Clearly identify the behavior expected, which should mirror the list set forth in the first section.
• Suggest methods for achieving these goals. If the employee could have figured it out by himself, you wouldn't be at this point. Also invite the employee to provide input on ways to improve his performance. The collaborative dialogue can be helpful. Your suggestions may be mundane in most circumstances, but it at least shows an attempt by you to help the employee correct the problem. "You need to work more closely with employee X, who knows the computer much better; you need to get some training on this subject; you need to set two alarms so you get up earlier . . . ".
• Specify the time frame for improvement. There is no law that governs the length of a probation. Two weeks, 30, 45, 60 or 90 days are all fine. Indicate that this is not a "free ride" for the designated length of the probation: "If we do not see immediate and sustained improvement, we will be forced to end the probationary period early and separate you from employment." You may need the entire time if it is a training situation, but if it is simply a "doesn't play well with others" or "can't get to work on time" situation, then you may end it early.
• Clearly spell out the possible consequences. There may be termination if there is no sufficient improvement. There may be an extension of the probation or the employee may be taken off probation. Make it clear that successful completion of the probation does not allow the employee to revert to this behavior in the future. Indicate that a repeat performance will most likely result in termination.
• At the end of the memo, add language that helps protect the "at-will" relationship. Putting an employee on probation (or any other disciplinary action) "does not change the at-will employment relationship between you and the company. Although we are not required to go through this progressive discipline step, we are doing so in an attempt to improve your performance and make you a successful member of our team."

If the probation is not successful (frankly, most aren't), then it is time for termination; a subject for a future article.

Jonathan Fraser Light is a senior partner with Nordman Cormany Hair & Compton LLP, where he specializes in management-side employment law. He can be reached at or (805) 988-8305.