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What Are Your Rights During a Probationary Period at a New Job?

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What Are Your Rights During a Probationary Period at a New Job?

Employers often put employees on a “probationary period” after an employee has been disciplined or for a set time upon being newly hired. Employers use this time to evaluate an employee and make sure that they can handle the job. While on probation, an employee’s freedom and benefits may be more limited, but they are still guaranteed certain protections under California and federal law. Continue reading for a discussion of probationary periods and the rights to which you are still entitled as a California employee. For assistance with an employee rights matter in Southern California, call our Orange County labor law attorney for trusted advice and representation.

What is a Probationary Period?

A probationary period is a period of time under which an employee is under extra scrutiny with more limited rights. Many employers will put newly hired employees on probation for the first six months to a year, during which time the employer will evaluate whether the new hire can meet the company’s standards and expectations. The worker’s supervisor will evaluate their performance and determine whether to retain, reassign, or terminate the employee.

Workers may be put on a probationary period in a number of situations, including:

  • Upon being newly hired
  • As part of their sanctions when being disciplined for negligence or misconduct
  • When promoted to their first managerial or supervisory position
  • When moved to a new position should they have avoided the initial probationary period

You May Not Be Fired for an Illegal Reason

Employees on a probationary period may be afforded more limited rights and be subjected to additional scrutiny. For example, employees might not be allowed to take vacation days during the probationary period, and they likely will have yet to accrue FMLA leave or paid time off. Probationary employees may be terminated for misconduct or negligence that might not normally lead to termination, as new misconduct may be considered a second or third “strike” during probation, and the employee under probation lacks the employer’s benefit of the doubt.

Employers may not, however, terminate an employee for an unlawful reason. Even during the probationary period, and even when hired for an at-will position without a contract, California employees have the right to be free from discrimination, retaliation, and wrongful termination. Wrongful termination includes:

  • Discriminatory termination based on an employee’s race, gender, sexual orientation, religion, pregnancy, or membership in a protected class

  • Termination in retaliation for exercising certain legal rights, such as if the employee took protected sick leave, filed for worker’s compensation, or attended jury duty

  • Retaliatory termination in response to an employee reporting unlawful conduct in the workplace or participating in an investigation into unlawful conduct

  • Retaliatory termination in response to an employee complaining about or otherwise reporting unsafe working conditions

  • Retaliatory termination in response to an employee reporting discriminatory conduct or workplace harassment

A probationary period is not an employer’s get-out-of-jail-free card for wrongful termination or retaliation.

You May Not Be Subjected to Harassment or Discrimination

Beyond wrongful termination, California employees are entitled to a workplace free from unlawful harassment or discrimination. Employees cannot be subjected to sexual harassment or other types of harassment, whether it takes the form of hostile work environment harassment or quid-pro-quo harassment. Nor can employees be subjected to discrimination based on protected characteristics, even if that discrimination does not amount to termination. Any discriminatory conduct–withholding of employment benefits, racial slurs, transfer to a less desirable position or location–is unlawful, even during a probationary period.

You Are Protected by Wage and Hour Laws

Employers are still subject to California worker protection laws, even during an employee’s probationary period. Nonexempt workers must be paid at least the minimum wage, must be given the appropriate rest and meal breaks, and must be paid overtime as required.

You Can Request Reasonable Accommodation

California’s Fair Employment and Housing Act (FEHA) requires employers to provide reasonable accommodation to employees to allow them to perform their job duties. Employees with disabilities or those who are pregnant, for example, are guaranteed the right to reasonable accommodation. You can request a reasonable accommodation as soon as you start your job, regardless of whether you are on probation.

If you are an employee facing discrimination, harassment or other employee rights issues in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employee rights allegations, wage & hour issues, employee contract disputes, or other employment law issues, contact a skilled and accomplished California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.

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