Q: Can we extend an employee’s probationary period? They aren’t meeting expectations yet.
A: You can extend an introductory period, but we would recommend a different approach. We’d also advise against using the word “probationary.” We’ll explain both points.
Extending the Introductory Period
First things first, be aware that having an introductory period for new employees has no legal impact on the employment relationship. Terminations during that time still come with risk (so problems should be discussed and documented) and terminated employees can still file for unemployment insurance. Extending the introductory period doesn’t mitigate risk or affect your rights and responsibilities as an employer. Regardless of how long someone has been employed, it’s always a best practice to ensure that any performance or disciplinary issues are well documented prior to letting them go.
If a new employee has reached the end of their introductory period and they aren’t performing up to your expectations—but you still think they have potential—we’d recommend implementing a Performance Improvement Plan (PIP).
A PIP is a tool that employers can use to help underperforming employees succeed in the organization. The plan allows you to specify the company’s expectations with respect to employee performance and behavior and to define what success looks like going forward.
The plan itself can be detailed on a single-page form. In the document you will want to note the basic performance issue (e.g. efficiency, attendance), list examples of the employee’s performance deficiencies, and then state what actions you expect from the employee, how they should be accomplished, and in what timeframe they need to be completed. It is recommended that the plan also make it clear what the consequences will be for failing to meet and sustain improved performance.
If you need to move on to termination, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.
Probationary v. Introductory
We strongly recommend using the word ‘introductory’ instead of ‘probationary’ for a few reasons. First, probationary has a punitive ring to it, and sounds a bit like the employee is already in trouble even though they’ve just started working for you. Second, and perhaps more importantly, at least one court has ruled that the term ‘probationary period’ implies greater employment rights upon the completion of the period. Essentially, its use could interfere with the at-will relationship between the company and employees. For these reasons, we suggest using the term ‘introductory period’ instead.
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