The Legalities of Probationary Employment

feldman_amy Amy Feldman
Amy E. Feldman is a business commentator and legal business...
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By Amy E. Feldman

PHILADELPHIA (CBS) - Does a company have a right to fire a probationary employee for any reason in the first three months? Many companies think so.

When a new employee in Kansas was fired, allegedly for smoking marijuana at the plant, he sued. The company defended on the ground that he was a probationary employee. Oh, also HE WAS SMOKING POT AT THE PLANT!

Many people are under the impression that whenever a new employee starts, he is a probationary employee and can be fired for any reason within the first three months of employment. This is partly true.

If the employee has an employment contract or is subject to a collective bargaining agreement he may be granted certain extra protections of job security, but your run-of-the-mill private employee is an employee at will. That means that he can be fired at any time – not just during the first three months – for any reason, just not for a discriminatory reason. So for the vast majority of employees, there is no such thing as a three month rule. He can be fired before or after the three months for good cause or no cause, but he can’t be fired – before or after the three months – for being a member of a protected class.

The Kansas employer learned that simply calling a new worker a “probationary employee” doesn’t protect them from claims that he was fired discriminatorily; the employee learned that marijuana smokers can be fired at any time.

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