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Probationary Employees

This page provides answers to the following questions:

1. What is a "probationary employee"?

2. What is a probationary period?

3. I am a union member. What does it mean for me to be a probationary employee?

4. I have been placed on probation by my employer for disciplinary reasons. What is the legal significance of being on probation?

5. As a probationary employee, am I still covered by employment laws?

6. As a probationary employee, am I eligible to take family/medical leave?

7. As a probationary employee, am I eligible for unemployment benefits?

8. As a probationary employee, am I eligible for vacation pay?

1. What is a "probationary employee"?

A worker may be considered "probationary" in a few situations:

  • when the worker is first hired (whether under a union contract or based on the employer's personnel policies);
  • when the worker is being disciplined by the employer.
  • When an existing employee receives a new position within the company but did not complete its initial probationary period; and
  • When an existing, or a new, employee is appointed to their first supervisory or managerial position.

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2. What is a probationary period?

A probationary period is an initial period of employment where an employer can consider whether an employee is able to meet its standards and expectations. It is a type of trial period that usually lasts anywhere from 6 months to a year and gives the supervisor an opportunity to evaluate an employee's conduct and job performance, and if necessary remove or reassign the employee. This type of a system ensures a high quality performance from employees as well as providing the employee with an opportunity to prove themselves.

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3. I am a union member. What does it mean for me to be a probationary employee?

A collective bargaining agreement between a union and an employer may place newly hired workers in a "probation" period. During that "probation," you are usually not allowed to use the union's grievance procedures if you are disciplined or discharged, making you essentially an "at will" employee.

In all other aspects, as a probationary employee, you are usually covered by other provisions of the collective bargaining agreement, such as seniority, hours of work, etc.

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4. I have been placed on probation by my employer for disciplinary reasons. What is the legal significance of being on probation?

If an employer places an employee on probation for disciplinary reasons, that employee nevertheless still has the same legal rights as regular employees. There is no legal significance to this probationary status other than as notice to the employee that s/he is in danger of being fired.

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5. As a probationary employee, am I still covered by employment laws?

Generally, employment laws cover probationary employees in the same way as regular employees. Whether an employer places an employee on a "probationary" period at the beginning of his/her employment, or an employee is on probation for disciplinary reasons, the employer is still required to abide by minimum wage, discrimination, and workers' compensation laws regarding that employee.

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6. As a probationary employee, am I eligible to take family/medical leave?

If you are a newly hired employee on probation, you might not qualify for leave under the Family & Medical Leave Act because you may not have worked enough hours in the past year in order to satisfy eligibility requirements for FMLA leave.

However, if you are on a probationary status due to discipline, if you are legally eligible to take leave, your employer cannot deny your leave request, even if it would cause you to violate an otherwise applicable attendance policy. For more information, see our site's family/medical leave page.

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7. As a probationary employee, am I eligible for unemployment benefits?

A newly hired probationary employee who becomes unemployed prior to the end of the probationary period may be ineligible for unemployment insurance because the worker may not have worked the minimum number of hours required during the unemployment insurance "base period." However, a probationary employee may be able to receive unemployment if s/he can satisfy the past earnings requirement by totaling the hours worked in previous jobs.

If you are terminated for failure to satisfy the conditions of your probation, you may be denied benefits if your conduct violated your state's standards for eligibility. In some states, an employee who engaged in willful misconduct is deemed ineligible to receive benefits. In other states, an employer needs to show only that it had "just cause" for terminating an employee.

For more information, see our site's unemployment insurance pages.

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8. As a probationary employee, am I eligible for vacation pay?

An employer can exclude probationary employees from the business' vacation policy by stating that the employees do not accrue vacation time during the probationary period. However, an employer may not prevent you from earning vacation time if the policy provides that once you have completed the probationary period, you accrue vacation from the very first day of employment. For more information, see our site's vacation pay page.

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Terry A. Venneberg Weekly Weekly

Topic of the Week

Social Networking & Computer Privacy

Generally, employers have the right to monitor their employees use of the Internet (including visiting social networking sites, checking e-mails, and instant messaging) on computers owned by the employer, during employees on-duty hours. Although federal l

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Blog of the Week

Major campaign to organize tech and video game industries launches, this week in the war on workers

There are increasing signs that workers in the tech industry are starting to see themselves as … workers. Maybe it's the 100-hour workweeks as video game companies get products ready for launch, or maybe it’s the layoffs that come after a big release.

Thought for the Week

"Employers are increasingly monitoring their employees’ social media activity. A key consideration is to avoid infringing the rights of employees under the Personal Data (Privacy) Ordinance. The Privacy Commissioner’s Guidelines on monitoring and personal data privacy at work are a helpful first port of call. They first stress the “3As” of undertaking a systematic assessment process to ensure that monitoring would be appropriate, ensuring that there are no less intrusive alternatives and ensuring that there is proper accountability for the collection of employees’ personal data. They then stress the “3Cs” of ensuring the clarity of an employer’s policy, ensuring that it’s communicated to employees and the safeguarding of data through proper controls. Employers should ensure that they clearly document and communicate their approach to monitoring."

–Kathryn Weaver, partner at Lewis Silkin

List of the Week

from Digital Information World

Social Media Use During Work Hours By Employees

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  • 51% of businesses have a social media policy,
  • 56% of the employees who use social media for work still find social media as a distraction during their work.

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