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Probably, yes. A lot of companies have probationary periods for new employees. The reasons for doing so vary. Some companies, for example, in states where unemployment compensation liability does not accrue for the company until the employee is on the payroll or works a minimum number of days, will use the probationary period as a tool to exit new hires whom they feel won’t be around long-term (without having their unemployment compensation rating affected). Other companies, for similar reasons, might use it to exit employees before ACA coverage or other benefits take effect. Companies might even use it as a recruitment tool where, for example, a raise might be involved with the probationary review. And, some companies just have them in place because it is common in the industry or for the company, without affixing any rationale to the matter.

Whatever the reason, I am aware of no laws requiring companies to have probationary periods. They are borne of policy and created unilaterally by companies, in non-union situations, to effectuate some purpose. As such, companies create and define what probationary periods are and are not. They could last as long as necessary to serve the company’s interest. They could result in a formal managerial review by the company or merely serve as a gateway to benefits. In short, unless the company guarantees, through their probationary period policy or some other contract of some kind with the new employees, an expectation that employees will be employed at least through the probationary period, there is no right that employees have to a minimum duration of employment. Not many employers want this sort of guarantee, so it would be wise to have affirmative language notifying employees that there is no guarantee of employment through the entirety of the probationary period.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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