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The Rights of Workers on Probation

A probation period is a trial period during which an employer closely monitors and evaluates a worker's job performance to determine if it meets company standards.

Probation periods are used at the discretion of the employer, and there are no laws that govern how, why or for how long a worker is placed on probation.

They may be used when a person is first hired, promoted to a new position or for disciplinary reasons, such as poor job performance, attendance or behaviour problems. Typically, probation periods last three, six or 12 months.

Labor Laws and Probation

Workers on probation do not lose their rights to the protection of federal and state labour laws. They are protected from discrimination and harassment. Their work hours and wages, including pay rate, regular and overtime pay, must comply with the Fair Labor Standards Act. If they are injured on the job, they are protected by the regulations of the Occupational Safety and Health Administration and are entitled to worker's compensation coverage.

Emloyee Benefits and Probation

Employees on new hire probation may not be entitled to certain benefits, such as employer-sponsored health insurance, vacation pay and pension plan participation. In addition, they may not be entitled to job protection under the Family and Medical Leave Act (FMLA) if they have not worked 12 months and at least 1,250 hours for the employer as required by FMLA. Workers on disciplinary probation retain their employer-sponsored benefits and FMLA rights.

Union Membership and Probation

Union members on probation have certain union rights, such as seniority and hours worked. However, they do not have the right to use the union grievance process if the probation is for disciplinary purposes. Many union contracts include a new employee probation during which the worker can be terminated by the employer without cause.

Employee Rights in Disciplinary Probation

Disciplinary probation may be appropriate if an employee cannot follow directions, does poor quality work, does not meet productivity standards, has difficulty working with others or has attendance or punctuality problems.

Employees placed on disciplinary probation have the right to know why they are being placed on probation, the terms of the probation and what they must do to successfully complete it. Workers have the right to know the criteria being used to evaluate their performance.

If a worker fails to successfully complete a disciplinary probation and is discharged, the right to appeal the termination is at the discretion of the employer. However, the worker has the right to consult with an attorney and pursue a wrongful termination lawsuit, if appropriate.

Unemployment Insurance Benefits

If workers on new hire probation are terminated before the end of the probation period, their eligibility for unemployment insurance (UI) benefits depends on the number of hours they worked during the state-required base period. The worker may combine the hours worked in the probationary position with hours worked for previous employers during the base period to qualify for benefits.

Termination as a result of disciplinary probation may lead to denial of UI if it was for just cause or wilful misconduct. However, if employees are terminated for poor performance, they may still be eligible for UI.