Monitoring an employee can be influenced for different reasons although most people associate employee monitoring with new hires. The period under which an employee is subjected to surveillance is known as a probation period. Workers under probation need to understand their legal rights and protections, such as union representation and employment benefits.

Most employers know that many employees are ignorant of their probationary rights hence, take advantage by denying them the benefits they deserve or exploiting them. Employees who are on probation should seek legal advice from an employment lawyer in California to protect themselves.

Probationary Employees

Employee probations are meant to monitor the behavior of a worker and they are recommended in some instances, including:

  • After recruiting a new employee; (whether under a union contract or based on the employer’s personnel policies);
  • Disciplinary actions by the employer;
  • During promotions or demotions that require probation; and
  • When an employee assumes a supervisory or managerial role for the first time.

Employers subject employees to probations to determine whether they’re can conform to specific standards and expectations. Probations are similar to trial periods that evaluate workers’ conduct, performance, and eligibility for a certain employment role. Employee probations promote the culture of working hard since no one wants to be a probationer.

Probationary Employees’ Rights and Impact of Workers’ Unions

Collective bargaining agreements between worker’s unions and employers require new hires to be put on probation. An employee can’t avoid probation through the influence of a workers’ union. In other words, you are under the mercy of your employer once a probationer–even a trade union cannot save you except for the usual employees specified in the collective bargaining agreement, such as working hours, work rests, and more.

Indiscipline-related probations do not impact the legal rights of employees–they have similar rights to other employees. The only significance of indiscipline-related probations is that the employee risks termination if the probation is unsuccessful.

Probationary Employees Protection under the Employment Laws

Employees placed on probation–regardless of the reason for probation, are covered by employment laws like other regular employees. The rights of employees specified in the labor law shouldn’t be violated just because they may not resist-some employees’ rights highlighted in the labor law include the right to fair compensation and working in a discrimination-free workplace environment.

Another important right is the right to annual leave–even for indiscipline-related probations. However, new employees placed on probation may be ineligible for leave because an employee must work for a minimum number of hours to qualify for FMLA leave. According to the Family & Medical Leave Act, an employer can’t deny a leave request, even if it violates an attendance policy.

Are Probationary Employees Eligible for Unemployment Benefits?

An employee who is terminated or becomes unemployed before the expiry of the probationary period may be ineligible for certain benefits. For instance, eligibility for unemployment insurance requires a minimum number which the terminated employee may not have worked.

A new employee placed on probation may however use employment data from their previous employment, such as work hours and earnings, to justify their eligibility for unemployment benefits. It’s important to highlight that ineligibility for unemployment benefits can be triggered if an employee is terminated for failing to satisfy the expectations of their probation.

Employees who knowingly or willfully engage in misconduct are automatically disqualified for unemployment benefits in some jurisdictions. In other jurisdictions, an employee can be disqualified if an employer cites a “just cause” for laying off the employee.

Rights to Dismissal for Probationary Employees

The probationary period is not sufficient time to bring a wrongful termination claim. However, the law protects probationary employees from harassment and dismissal based on gender, ethnicity, marital status, age, cultural background, and other “protected reasons”.

Wrongful termination during probation occurs when an employer the right or legal dismissal process. However, an employer can terminate a probationary employee due to:

  • Employee’s underperformance;
  • Employee’s poor timekeeping and attendance;
  • Employee’s personality that may hinder productivity;
  • Organizational culture.

You should consider extending the probationary period instead of dismissing a probationary employee– an extension gives the employees a chance to improve. Besides, probationary periods are not limited to a certain duration of time.

The primary goal of probation is to hire effective employees so, it’s important to help new hires to:

  • Understand their role– duties, expectations, and more;
  • Develop the right skills for this position;
  • Address arising issues and allow room for rectification.

Probations typically end through review meetings between probationary employees and employers. The meeting should focus on the employee’s achievements, areas of improvement, and employees’ needs–if any. After the end of the probation period, you can opt to continue growing the working relationship or fire the employee.

Probations are meant to establish whether the transacting parties are fit for each other and any of the parties can terminate the short relationship at the end of the probation period.


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