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Dec08

90 day probation

Is it 90 working days or just 90 days after the employee is hired?

This depends upon company policy, but usually it is 90 calendar days after hiring, not 90 work days. For legal purposes, there is nothing magic about the 90-day period, or about a probationary period.

There are many misunderstandings about the 90-day probationary period. Twenty years ago, most companies had a policy that the first 90 days were a probationary period. The purpose of the probationary period was to determine if the job was a good fit between employee and employer. During the probationary period, the employee had few if any benefits. Employees assumed that it was easier to let them go during the probationary period. Often, under state law, an employee who was discharged within the 90-day probationary period was not eligible for unemployment. Or at least, the most recent employer was not the chargable employer for unemployment insurance purposes.

Much of that has changed, making the probationary period obsolete or at least less used. Under employment at will, any employee can be fired at any time for any (legal) reason or for no reason at all. Some laws entitle employees to group health insurance in less than 90 days, in many cases. And in many states employees who work even a few weeks may be eligible for unemployment, with the most recent employer the chargable party. A few companies do not give some benefits to workers for the first 90 days, but beyond that, the probationary period has little meaning, from an employment law standpoint.

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This entry was posted on Monday, December 8th, 2008 at 4:20 pm and is filed under
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33 Responses to “90 day probation”

  1. john Says:

    If my probation period is up today, when is the correct time for my employer to approach me as to whether they are keeping me employed? Thank you.

  2. Caitlin Says:

    Hi John! There is no hard and fast rule on this. The employer could speak with you today, tomorrow or next week. HTH, and thanks for reading the blogs!~Caitlin

  3. Juan Says:

    I know they can fire you for “any reason”, but I also heard that law was not bullet proof. Could an employer fire you for personal reasons such as if someone from management liked a person in the office and you happened to get along with that person and they got jealous and went on to recommend your termination?

  4. Caitlin Says:

    Hi Juan! You are right on both counts. An employer can fire an employee for any reason or for no reason in most cases. However, the law is not bulletproof. Illegal discrimination is still illegal, for example. So it would be illegal to terminate an employee because he or she was Latino or Asian. However, it is legal to terminate an employee due to jealousy. Obviously, its not good management, but it is legal.It is also possible that the woman in this scenario is not interested in either of her suitors. That would make this illegal sexual harassment — of the woman. HTH, and thanks for reading the blogs!~ Caitlin

  5. Oscar Says:

    Hi, I accepted a position recently under the terms that later on we could re-evaluate my salary. Since I am under the 90 day probation period, when would it be wise to “remind” or to request a salary re-evaluation, and what is the best way to go about it? Thanks

  6. Caitlin Says:

    Hi Oscar! It is not appropriate to raise the issue of salary before the 90 day probation period ends, and frankly, we are not hopeful even after that. Asking for and receiving a raise is a scenario that occurs much more often in sitcoms than in real life. In reality, if the employer intended to pay you more, he or she would have offered it up front.

    Most mid-sized or larger employers have clearly defined evaluation processes, with raises issued once per year to everyone in the company at the same time, if at all. If it were company policy to offer a raise after 90 days, the employer would have said so, and likely would have told you the amount of the raise.

    When an employer says they will revisit the salary issue (especially without giving you a firm date to do so) they usually mean *we can discuss a raise again, but the answer is still going to be no.* We hope you will be one of the lucky ones who does merit an increase. However, be aware that if you are turned down, it probably has more to do with the employers budget than with your performance. HTH,and thanks for reading the blogs!~ Caitlin

  7. randy Says:

    can you be fired under your 90 days for medical? being hosplitalized for serious health problems, and then being fired for attendance.

  8. Caitlin Says:

    Hi randy! Yes, an employee who has been with the company 90 days or less can be fired for missing too much work — even with a good reason like a medical condition. Employees who have been with a larger employer for more than a year may qualify for up to 12 weeks of job-protected leave. HTH, and thanks for reading the blogs!~ Caitlin

  9. Brent Says:

    I am about to sign my offer letter. It states that after my probationary period “based on performance, your compensation may increase to $**,000 annually.” The number there is what was discussed in the verbal offer. However, we also discussed that there would be no cap on my salary and I would be evaluated 2 or 3 times and compensated appropriately in the first year instead of just one yearly evaluation. None of this is stated in my offer letter. Should I ask about this? or should I just assume that they will keep their word? any advice would be nice.

  10. Caitlin Says:

    Hi Brent! No, you should assume that the offer letter includes everything the employer intends to give you. Note that the offer letter says your salary “may be” increased to $x. That also means that you may receive no increase at all.
    There is no mention of any additional salary increases because the company does not intend to grant them.
    This may be a case of an overzealous recruiter promising too much, and having it vetoed by someone higher up. Or, it may be that the company is unethical and intentionally misleads applicants, or a simple miscommunication.
    You should tactfully bring this up to the person who signed your offer letter, as in “During the interview, we discussed…” If they will revise the offer letter to include the arrangements you discussed, fine. If not, our advice would be to not accept this position unless you are willing to work for the starting salary indefinitely. HTH, and thanks for reading the blogs!~ Caitlin

  11. eric Says:

    i was just fired and have been with the company for about 60 days. i was never told or signed anything stating i was under a 90 day probation period but should assume i was? i feel i was wrongfully terminated.

  12. Caitlin Says:

    Hi eric! Unless you live in California, it really does not matter if you were on a probationary period or not. Under employment at will, any empoyer can fire any worker at any time, with or without a reason. In your case, the employer apparently decided that this arrangement was just not working out. If you feel you are the target of discrimination based on race, color,religion, national ancestry or sex, you can file a discrimination complaint against the employer. Otherwise, it is probably not worth the money to hire a lawyer and sue the employer for wrongful termination. Successful wrongful termination suits usually involve long-term employees who are unjustly accused of misconduct such as stealing. HTH, and thanks for reading the blogs!~ Caitlin

  13. Betsy Says:

    In California- During the 90 day probationary period we find that the employee does not “fit in or manage the job correctly”, if I fire them will they be able to collect unemployment

  14. Caitlin Says:

    Hi Betsy! In many cases, yes, the employee will qualify for unemployment benefits. Eligibility for unemployment benefits is based on the employees total earnings during the past 15 to 18 months. If the employee has worked enough to qualify for unemployment benefits, as the most recent employer, you will normally be the chargeable employer.
    Still, letting an employee go and allowing him to collect unemployment may be better than keeping an unsuitable employee on staff. HTH, and thanks for reading the blogs!~ Caitlin

  15. Phil Says:

    Earlier you said “the employer could speak with you today, tomorrow or next week.” about benefits/Permanent, but is there any cut off time? In California?

  16. Lisa Says:

    Was told when hired that after 90 day probation I will receive a $2.00 an hour raise. Well, probation period ended a month ago. No notice of my evaluation and no raise. Asked HR when both of these would occur. She acted clueless about the raise, and vague about when my evaluation will be. What should I do?

  17. hrlady Says:

    Hi Lisa,

    Do you have an offer letter that you can reference? If you do you should discuss it with your supervisor or Human Resource Department. In the event you do not have an offer letter, the company may have a probation policy that you can discuss with your supervisor or Human Resource Department.

    Either way, it is probably a good idea to speak with your supervisor about your performance and bring any issues to their attention.

    Thank you for reading the Humanresourceblog.com

  18. Jane Says:

    I was hired full time by a company close to four years ago. I was put on a 90-day probationary period.

    I recently accepted a new position at the same company, was offered a raise, and have been working the position ever since December; however, it seems that there may be another 90-day probationary period before I get my raise; though it was never told to me.

    Am I right in approaching someone about this issue and asking for back pay?

  19. hrlady Says:

    Hi Jane,

    It is not unusual for an employer to have a probationary period when an employee is transferred to another position. Also any monetary increase is usually held until the probation period is over. Sometimes a company will start the new pay rate after the probation period is over. Other companies will wait until the probation period is over, and if the employee preformed well, will offer retro pay.

    It is up to the company to determine how they handle promotions.

    In order to determine how your company handles promotions you should discuss the situation with your Human Resource department.

    Thank you for reading the Humanresourceblog.com

  20. Joe Says:

    I work for a freight company part time for 2 years.Then the holidays came and it slowed down so I was on call part time. It has not picked up. I have been on call status, but still employed. Company has policy if an employee has not worked 90 days, Human resources will initiate an administrative separation. I was told that it does not mean I am fired or laid off. Not sure what this mean. Can I collect unemployment in California. If I am on a administrative separation.

  21. hrlady Says:

    Hi Joe,

    Typically the term “Administrative separation” is used in the military. Your company may be stating that they will remove you as an active employee until work is available. You should clarify that statement with the Human Resource Department.

    As for a collecting unemployment, there are eligibility requirements such as;

    • Have received enough wages during the base period to establish a claim.
    • Be totally or partially unemployed.
    • Be unemployed through no fault of your own.
    • Be physically able to work.
    • Be available for work which means to be ready and willing to immediately accept work.
    • Be actively looking for work.
    • Meet eligibility requirements each week benefits are claimed.
    • Be approved for training before training benefits can be paid.

    You should contact the unemployment office to see if you meet eligibility requirements.

    Thank you for reading the Humanresourceblog.com

  22. Stephan Says:

    Hello,

    My 90 days have been up for 3 months now. Should I approach my employer for my review or not worry about it. Also if things were to get hairy could I use this against them?

    Thanks

  23. hrlady Says:

    Hi Stephan,

    You should speak with your manager or directly with the Human Resource department. Certainly, if you were told you would be on probation, with a possible increase at the end of the 90 day period, that is an expectation that was set by the company to you.

    I would not say that asking for the status on your 90 day probation period is a hairy situation. So no, probably you could not use that against them. But you do have a right to know.

    Thank you for reading the Humanresourceblog.com

  24. Lynn Says:

    I was re hired by a company I worked for previously having had a very good working relationship. I was five weeks into my 90day probationary period and was let go. My immediate supervisor who I have known for years and recruited me from another job started on day one of my employment talking about sexual experiences that business colleagues have while traveling on the road, lap dances he purchased for his ex wife, etc… He talk to me about this one on one as well in the presence of other business women. I told him that I did not like or agree with this… He then began to treat me poorly, i.e. speaking down to me in the presence of customers and no longer supporting my challenges with the company bully. Yesterday after a day of bullying, etc. I walked away from the ugliness. I was fired. Wien I asked why, my boss said the company was moving in a different direction. I asked for an exit interview and he stated it was not necessary since we are within the 90 days. My guess is that I should contact an attorney and or EEOC?

  25. hrlady Says:

    Hi Lynn,

    In an “at will state” an employee or employer can terminate the employment relationship at any time for any reason. However, claims of harassment or retaliation should be reported to the EEOC who manage employee reports on sexual harassment discrimination.

    In addition, you should contact the unemployment office for a possible unemployment claim. Typically, if you left a job for a new job and then fired, you may be eligible to receive unemployment benefits (it depends on the state). In any event, you should file a claim for unemployment benefits.

    Thank you for reading the Humanresourceblog.com

  26. Elaine Says:

    My question is , i have been working for a small company with no HR dept its owned and runned by father daughter,My question is this I have been with this company for 6 years given them my best the customers love me in the past 3 months now the owner daughter have turned , i was begin harressed by a employee when I spoke to them about this the tables turn in a bad way towards me now I have the owner and daughter setting rules that i never heard of and it only applies to me , such as if I want to keep my job shut up dont talk to anyone yesterday i was told by the daughter that she will be writing a script that i will be saying when i answer the phone, any emails have to be edited by her and the newest one if I need to use the bathroom I have to ask . I have doucment the dates and times and what is said , with no jobs out there I dont know what to do, I was also told I will never be able to collect if they termate me because its a at will state

  27. Mario Says:

    I need answer to the following question.
    I live in California I quick my previous job that I worked for 5 yrs for a new job I have work for 4weeks. If i get fired for any reason during the probatory period will I be eligible to collect unemployment?

  28. hrlady Says:

    Hi Elaine,

    An incident must have occurred that warranted the outcome from the owners. The best advice is to speak to owner and the daughter and find out what the situation was and how you can correct it.
    As far as unemployment, you would not be able to collect unemployment if you are terminated if you are fired. You should contact the unemployment office to discuss your situation.

    Thank you for reading the Humanresourceblog.com

  29. hrlady Says:

    Hi Mario,

    Well when we have a job and decide to quit for whatever reason, we are taking a chance. Unemployment benefits are pretty much dictated by the federal government but each state have their own rules. If you quit for a good cause, you may be able to collect if you are fired from the new position. However, that will also play a part in determining eligibility for benefits.
    Unemployment compensation can be awarded if you voluntarily quit your job with “good cause”. Some “good cause” reasons are: medical reasons, family circumstances, financial difficulties, transportation problems, leaving for other employment, and unacceptable working condition.
    Unacceptable working condition can be “good cause” to quit a job, as long as you tried to resolve the issue with your employer. Some examples of unacceptable working conditions are: unsafe working conditions, employer’s refusal to pay you, and offensive conduct by your employer such as unfair accusations, abusive conduct, discrimination, and profanity at work.

    Thank you for reading the Humanresourceblog.com

  30. Veronica Says:

    Hello, I found out i was pregnant in Nov. Had an interview for a job and took the offer in Dec, but did not start working with my employeer until Jan. I was given a job offer letter stating i will be on a 90 day probation. My employeer was aware of my pregnancy mid feb. My 90 day probation just ended, Now i was told that my probation is now being extended an extra 30 days. Is legal?

  31. hrlady Says:

    Hi Veronica,

    Yes it is legal to extend a probation period. It is probably due to the nature of the job and your performance. I would speak Human Resource about any issue they feel you need to improve on.
    In today’s world this is probably not related to you becoming pregnant.

    Congratulations on your pregnancy and thank you for reading the Humanresourceblog.com

  32. Elaine Says:

    If an employee was hired on 8/19/13 in California,and was told he will have the insurance coverage after 90 days(calender day). The coverage will start from 11/19/13, right? But the insurance premuim the employer paid is for the whole month (11/1/13-11/30/13). Should the employee get the coverage starting from 12/01/13 instead? or from 11/01/13?

  33. hrlady Says:

    California does not require employers to provide health insurance to employees and the employer mandate of Obama Care has been held off for another year. Most benefits, including medical, dental, and vision, are considered tools to attract and retain qualified employees; thus, it is up to the employer to determine its administration. It’s important to clearly understand your policy. Stating eligibility is effective “three months” versus “90 calendar days” from the hire date affects the coverage start date. If the policy is for coverage to be effective 90 days from the date of hire then an employee hired on August 19th would be eligible for health insurance on November 15th. Conversely, if the policy is for coverage to be effective three months from the date of hire then the effective date would be November 19th.
    It’s best practice to comply with the terms offered to the employee when he was hired. Going forward you may consider changing the policy to better suit your company. Since the insurance premium is paid for the whole month you can offer coverage to start the first of the month following 90 days of employment. So, in this case, the eligibility date would be pushed to December 1st.

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