Avoid the use of a “Probation Period”

In my last post, I talked about firing employees during their first 90-days. There is a danger employers need to be aware of when referring to this initial period as a “probation” period.

One way employers alter the “at-will” employment relationship is by an express or implied promise, often in a handbook, not to fire employees unless the employer has a good enough reason for doing so, usually called “good cause.” A court could use your use of a “probation period” as a promise, by implication, that once an employee gets beyond the “probation period,” he or she cannot be discharged unless the employer has “good cause.” (And, in fact, this is often what union contracts provide.)

Here is the reasoning that an employee’s lawyer would likely use to file a lawsuit. During the 90-day “probation period,” everyone agrees that the employee can be fired for any reason. Once the employee passes the “probation period,” though, the employee must have some greater rights than before passing through that period. Unlike while in the period, the employee now cannot be fired unless the employer’s reason is a good enough one. The existence of the “probation period” is, in effect, an implied promise not to fire employees who have completed the period absent good cause. As a result, the employee can file a lawsuit to have a judge or jury decide whether that reason was good enough to justify discharge or whether the employer wrongfully fired the employee without good cause.

There are counter arguments employers can make. But to reduce the risk of this becoming an issue in litigation, avoid having a “probation period” in your handbook and train supervisors not to refer to a any “probation period” in day-to-day language.

Avoid Common Pitfalls When Drafting Policies – Part One

One common mistake I encounter is an employer adopting an anti-harassment policy prohibiting “all harassment” rather than just “unlawful harassment” without an understanding of the distinction or potential consequences of the language choice.

Under federal law and the laws in the state of Washington, as in many states, an employer is not required to maintain a workplace free from all harassment.  Harassment is made unlawful only when it is because of race, age, sex, disability, or other status protected by applicable law and only when the conduct is sufficiently severe or pervasive.   (A general anti-bullying law, which has not passed in Washington, would be an exception to this rule.)  A policy prohibiting “unlawful harassment” simply agrees to comply with existing law.

A policy prohibiting “all harassment,” on the other hand, arguably goes beyond what the law requires.  Employees often claim that employers, by using such language, have undertaken a duty to maintain a workplace free from any and all harassment regardless of the reason for the conduct, its severity, or its pervasiveness.  Thus, the language creates legal risks for employers that otherwise would not exist.  And I have seen many claims that fail under the “unlawful harassment” language but survive under the “all harassment” language.

A good case can be made for adopting either type of language in the policy, but the decision should be made only after understanding and weighing the pros and cons of the different language to avoid creating unintended risks.

How to Implement Your Social Media Policy

Maria Ogneva from Yammer, an internal social network product for companies, recently wrote an article highlighting several tips on getting employees to buy-into your social media policy.  I especially like her focus on educating, empowering, and teaching employees WIIFM (“What’s In It For Me”) rather than on disciplining them:

The best way to ensure buy-in to your social media policy is not through threat of disciplinary action.  Rather, it’s by providing education and resources, and building the right processes.

She also included in her article an outstanding video on the topic prepared by, of all things, the Department of Justice in Victoria, Australia.  Check it out!

Do You Really Need that Employee Policy?

I enjoyed reading the new book Rework, by 37 Signals founders Jason Fried and David Heinemeier Hansson, which is filled with straight-forward tips for running a successful company.  Regarding employment policies, they say:

The second something goes wrong, the natural tendency is to create a policy.  “Someone’s wearing shorts?”  We need a dress code!”  No, don’t.  You just need to tell John not to wear shorts again.

Policies are organizational scar tissue.  They are codified overreactions to situations that are unlikely to happen again.  They are collective punishment for the misdeeds of an individual.

This is how bureaucracies are born.  No one sets out to create a bureaucracy.  They sneak up on companies slowly.  They are created one policy – one scar – at a time.

So don’t scar on the first cut.  Don’t create a policy because one person did something wrong once.  Policies are only meant for situations that come up over and over again.

After writing and revising hundreds of policies and employee handbooks, I wholeheartedly agree with Fried and Hansson.  I would add to their suggestion that many policies already adopted should be discarded.  Some policies, such as an anti-harassment policy, are needed.  But many other policies are unnecessary and may create an unintended liability risk.

For example, some employers have a policy telling employees it will recall employees based on certain factors, such as seniority.  When the rehire decision is actually made, the employer often wants to ignore the policy by basing the decision on other factors or hiring someone new rather than recall anyone.   Because of the policy, someone not recalled pursuant to the factors now has an argument that the employer is liable for not following its policy.  In essence, the company made things worse by creating a risk that otherwise would not have existed.

In return for this increased risk, I think the company got little, if any, benefit from having the policy.  I doubt that the when the employee got the policy he or she felt any better about the company because of the policy.   Many times, employees read a policy once, if at all, when hired and then not again until after they are no longer employed and have consulted a lawyer.   It is then that many policies become important for the first time — as weapons against the employer.

You may disagree on the benefit or risk of this or any other policy.  The important thing is to not have any policy without first thinking through how the policy will really work in practice, what it actually accomplishes, what are the risks, and whether any benefit actually outweighs the risk.