Labor and Employment

An Employee's Guide to Probationary Employment

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Learn what a probationary period is and what legal effect it has.

A probationary period of employment is a stretch of time where an employer watches an employee more carefully and provides feedback and training. Some employers have a probationary period for all new hires, while others use probationary periods only in response to a current employee’s performance problems. In this article, we explain what a probationary period is and how it might impact your job.

What Is a Probationary Period?

Some employers start all new employees off on a probationary period, where they monitor new hires and make sure that they are on the right track. This is sometimes also called an “introductory period.” The length of the probationary or introductory period depends on the employer, but they are often between 30 to 90 days.

Probationary periods are also used as a tool to get poorly performing employees back on track. For example, if your performance is slipping and your employer has already given you multiple warnings, it may decide to put you on probation. Your employer may also give you a list of items that you need to improve by a certain deadline in order to continue with the company. This is commonly referred to as a “performance improvement plan” or PIP.

What’s the Legal Effect of a Probationary Period?

In nearly all states, the default rule is that employees work at will. This means that your boss can fire you at any time, for any reason that is not illegal (for example, due to race or gender discrimination). Likewise, you have the right to quit at any time, for any reason. (See At-Will Employment for more information.)

In most cases, a probationary employment period does not override at-will employment. In other words, your employer can still decide to let you go during the probationary period, or it can let you go even after you successfully complete the probationary period.

However, your employer must typically make it clear to you that your probationary period does not alter the at-will nature of your employment (this is usually done in the employee handbook or other written policies). Otherwise, you might have an argument that your employer promised you a chance to improve and that you’re entitled to that opportunity before you're let go. In some states—including California—employees have successfully argued that they became “permanent” employees once they completed a probationary period, which meant they couldn’t be fired without cause.

Can I Still Get Unemployment If I’m Fired While on Probation?

If you’re put on probation for performance or conduct issues, and you’re eventually fired, you may or may not be entitled to collect unemployment. The answer depends on whether your state’s unemployment rules would find that you were fired for “misconduct.” Unemployment benefits are generally not available to employees who are fired for misconduct.

In many states, you will still be able to collect benefits if you were fired for poor performance, as long as you did your best. However, if you were fired for intentionally violating your employer’s work rules or disregarding your employer’s interests, you might not be eligible for benefits. For example, if you were fired for being repeatedly late or absent, showing up to work intoxicated, fighting with a coworker, or refusing to perform your job duties, you probably won’t be able to collect benefits. For more information, see Unemployment Compensation When You've Lost Your Job.

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