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Nine Tips for Strong Probationary Memos
Employment Law Group Update | 2/25/2011

Putting an employee on probation has a chance of succeeding, but it is important that the document be worded correctly, as it may be the centerpiece of your defense against a wrongful termination claim. Here are a few tips for ensuring a useful document, both for maximizing the potential for the employee to succeed and to help defend against a subsequent claim:

1. "Here is what you are doing wrong" -- be specific, and provide a list if appropriate;
2. "Here is what we expect going forward -- it should mirror the list in #1;
3. "Here are our suggestions for improvement" -- if the employee knew how to fix it, he wouldn't be in this mess;
4. "We would like you to prepare a memo, due back by [date], indicating how you intend to achieve the improvements identified " -- This forces the employee to buy into the process; if the employee ignores the request, send the employee a reminder memo and give one last chance;
5. "It's a [45/60/90] day probation" [there is no law] -- but it' not a free ride; "We will need to see immediate and sustained improvement or we may be forced to end the probationary period early and terminate";
6. "There are three possible outcomes: 1) "You succeed and go off probation" [ and make sure to send a memo at conclusion to remind him that it won't be probation if he regresses]; 2) "You improve somewhat, but not enough, and we extend your probation"; 3) you fall short and we are forced to end your employment";
7. "Please remember that this probation is designed to assist you in again becoming a productive member of our team. However, it does not change you at-will employment status with the company."
8. "If you have any questions about this probationary period, please don't hesitate to discuss them with me."
9. Check back with the employee during the probationary period, and consider documenting progress (or lack thereof) in weekly, bi-weekly or monthly intervals. Remember, the more documentation the better.

For more questions regarding this issue, contact Jonathan Fraser Light or any member of the Firm's Employment & Labor Law Group.