06/05/2017

Introductory period policies: What they are, what to avoid


When practice owners develop their employee manuals, care should be given when establishing an introductory or probationary period policy. These policies can create misunderstandings for employees if the employer does not clearly communicate the purpose of the policy to the new employee, whether it is for performance evaluation or benefits eligibility. Similarly, an incorrectly worded policy can jeopardize the “at-will” status of the employer-employee relationship. In fact, it’s a common misconception that employers have more “freedom” to terminate an employee during this period of time.

California is an “at-will state,” which means that the relationship between the employer and employee is presumed to be at will. Typically, without the existence of an employment contract, or contradictory statements or actions, the employer or the employee can terminate the employment relationship at any time, with or without cause. No matter the length of the employment relationship, from day one to day 1001, either party has the ability to terminate the relationship for any non-discriminatory legitimate reason (i.e., one that is not based on prohibited discriminatory grounds such as race, gender or disability).

Irrespective of California’s at-will law, employers should refrain from termination unless it is based on poor performance, a legitimate non-discriminatory reason or not meeting behavioral expectations established in the practice’s employee manual. As a best practice, employers should provide ongoing constructive feedback and document instances of employee discipline prior to making any decisions to terminate an employee.

Ideally, if an introductory period is included, it should be used as a defined timeline for employers and employees to determine whether an employment relationship is a good fit. As part of this, employees should expect to receive constructive feedback or have skills evaluated more frequently and should understand that they must often surpass an established period of time before they are eligible for certain mandatory or optional benefits. Employers who wish to establish a probationary period (rather than an introductory period) should do so with the guidance of an employment attorney.

California does not have a particular law requiring employers to include these introductory periods. Some laws, such as mandatory paid sick leave, do allow employers to establish eligibility timelines up to 90 days. As a best practice during this time, policies should define when employees can expect more regularly scheduled evaluations or a more detailed training program that will support them while they learn and acclimate to a new position and workplace culture.

It is not uncommon for the terms “introductory period” and “probationary period” to be used interchangeably. If not well-developed, with the intent clearly and correctly worded, a probationary period policy can potentially weaken an employer’s employment-at-will status. Caution should be taken when using the term “probationary period” to prevent employee misunderstandings. Employees might mistakenly consider themselves “permanent” when completing this period of time. For instance, they may believe they are protected and that employers are less likely to terminate the relationship if they successfully completed a probationary period.

While many policy requirements are governed by law, an established introductory period is not mandatory and may not make sense for every practice. With this in mind, CDA Practice Support offers a Sample Employee Manual template that includes an “At-Will Employment” policy and an “Introductory Period” policy. These policies reiterate that employment is at-will and that employees can be terminated at any time during the introductory period and completion of the introductory period does not change or alter the at-will employment relationship. Furthermore, at any time, with or without notice, the employer reserves the right to alter or change job responsibilities, reassign or transfer positions or assign additional responsibilities.

Employers are encouraged to review and update language in their manuals that may be confusing, or ensure or imply permanency of continued employment for employees after the completion of a specified period. If eligibility requirements are outlined in the introductory period policy, CDA Practice Support recommends that employers also include eligibility requirements for benefits at the beginning of each individual benefit description within the manual. For example: “New employees will not be eligible to use paid sick leave until their 91st day of employment” or “Paid vacation benefits are provided to full-time employees who have completed one year of employment.”

Create policies for your practice using the Sample Employee Manual template, available through CDA Practice Support at cda.org/practicesupport.



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