Probation periods - a comprehensive guide for employers

What is a probation period?

The probationary period is a defined period of time(typically 3 months) from the moment of hiring until the employee becomes permanent. You can see it as a trial period when the new employee receives all the training needed to do their job, and the employer has the opportunity to check if they are a fit for the team.

The usual period is 90 days, but it’s up to every company to decide the length of the probation period.

During the time interval, if the new hire is deemed unsuitable for the position, he/she can be let go with little or no notice.

Are probation periods mandatory?

In the US, no federal laws impose a probation period for every employee. It’s something to be agreed upon between the employer and the new employee. The US is mainly based on the principle of “employment-at-will,” which means any of the 2 parties can terminate the contract at any point in time, without notice, for any or no reason.

The only exception is the state of Montana, where state laws stipulate that a new employee’s probationary time lasts 6 months from the date of hire if the employer doesn’t impose a specific probationary period.

Therefore, legally, there is no general obligation to set a probation period at the start of an employment contract.

In Canada, the usual probation period is 3 months, but some special laws stipulate different periods, like 6 months or 13 weeks.

How to implement a probation period?

Since there are no legal stipulations regarding this topic, if you wish to implement a probation period, you will need to design a clause and add it to the employment contract you use, a clause that will have to specify in detail all the terms and conditions of this time period. Make sure you pay attention to everything, so the probation period becomes contractually binding.

This clause should stipulate the length of the probation, the notice period during this time(or the complete lack of it), your unilateral right to extend said probation period, and the employee's rights during this time. 

Once you decide on the length of the period, you must respect it as the employer and employee. The employers usually resort to a 3 months probation, but you may choose to go up to 6 months in some cases, for example, in situations where the role is highly complex, and you feel you need more than 3 months to assess the new hire.

The clause will also determine the notice offered during this probation period. As a rule, the employment contract also stipulates the rules in this matter. Still, the notice during the probation period cannot be less than the statutory notice period of one week following the first month of employment.

Employee’s rights during the probation period

It may seem as if the employer has all the benefits of implementing a probationary period, but we will point out what the employee is entitled to:

All employees, therefore also the ones under probation, are protected by law against discrimination or harassment based on age, sex, race, ethnicity, political options, religious beliefs, etc.

Employees under probation benefit from the following rights: vacation time, paid time off, statutory sick pay, family leave, and pay at the minimum or above the wage laws.

If the employee under probation is a person with disabilities, you must make proper adjustments in line with their right.

Examples of clauses imposing a probation period

You don’t need fancy wording. Just make sure the terms are clear for an average employee. Therefore, a probationary period clause may look like this:

 “The first 90 days of your employment contract shall be a probationary period, and your employment may be terminated during this period at any time without notice during your first month and with one week’s prior notice thereafter."

“We may, unilaterally, extend this probation period for a further ……. days."

“During this probationary period, your performance and fitness for continued employment will be supervised.”

How to manage employees during the probationary period?

Helping them pass through this period is also of great help for you, as the employer, because you can see the suitability for the role sooner than if you put in no effort.

Here are some tips:

• Ensure you follow a good induction plan - so the employee gets accustomed to the organization’s mission, goals, and processes as soon as possible.
• Explain your expectations - so the employee knows from the beginning what is expected from them. Tip: By using a 30-60-90-day plan, you can clarify the expectations including focus areas, tasks, objectives and KPIs.
• Establish a few targets - it’s a great way to measure continuous performance. But make sure you set simple, achievable targets because, in the first weeks, the employee needs to get a feeling of how the business works.
• Set up regular meetings with the employee - it can be once or twice a week. Discuss the progress or the lack of progress and give constructive feedback. Effective communication is critical in everything.
• Write down your remarks - it’s crucial to keep notes of the whole process, so you can consistently document it in case of termination. Add them to the employee’s file.

If none of these efforts work and you feel the employee is not a fit for the role, the last thing you can try is holding a probation review meeting. During this discussion, your notes come in handy. Review them, and set up a time and date. Start by explaining the purpose of the meeting- to review the activity/performance and the conduct during the probation period. Give the employee a chance to respond to your allegations. Offer clear examples when negative feedback is in question. Be transparent and honest. Explain why you think the progress is not at the desired level. 

After this meeting, your 2 options are to extend the period or terminate the contract.

FAQs about probation periods

Here are some common questions about employee probation periods.

Can I extend the probationary period?

Yes, if you feel you need more time to decide AND if your probationary policy allows for an extension.

Can I dismiss the employee during the probationary period?

Yes, this is the rule.No reason is required. Remember just the statutory notice, meaning a minimum of a week’s notice if the employee has worked for more than a month.

What happens when the probation period ends, and I want to keep the employee with our organization?

It’s not mandatory, but it would be great to inform them in writing that they are considered permanent employees from this moment on.

Conclusion

Do you use a probationary period policy at your company? If not, maybe it’s time to consider it! It’s a great way to check fitness, and it can be of great help regarding the costs. Plus, it will protect you and the employee if the match between the new hire and the role isn’t there.