Fire someone within the first 90 days

One way employers can avoid litigation is to fire poor performers before they have worked 90 days.

Most believe that after an employee works for certain length of time, typically 90 days, the company can’t fire the employee unless his or her performance is terrible (and the employer has first warned the employee) or the employee engages in gross misconduct like theft.

But this is not the law for most private employees. Washington, like most states, has “at-will” employment. Unless one of the limited exceptions to “at-will” employment applies, an employee can be fired without notice for any reason the employer thinks is good enough. One exception is when a collective bargaining agreement is in place. Another one is that an employee cannot be fired for race, age, sex, religion or other characteristic or activity expressly prohibited by a statute.

Lawsuits, though, are often less about the law and more about an employee wanting to remedy a perceived wrong. When someone has worked for an employer for a period of time, the employee develops a sense of job-entitlement. For whatever reason, maybe because union contracts have historically often incorporated a 90-day “probation period,” the ninetieth day has developed into a benchmark of sorts for when this job-entitlement belief really starts to take hold.

I have found that when the discharge of an employee is before the ninetieth day, the employee is much less likely to file a lawsuit, file a charge with a state or federal agency, or even to consult an attorney. On the other hand, the longer an employee is on the job after 90 days, the stronger the employee will develop a sense of job-entitlement and the greater the risk that the employee, when discharged, will file a lawsuit or take other action to remedy the perceived wrong.

When you have a new employee who is struggling with performance or conduct issues, if you do whatever is needed to resolve the issues or make a decision to discharge before 90 days has passed, you will reduce your risk of litigation. On the other hand, when deciding whether to fire long-term employees, recognize that the length of service, although legally irrelevant, affects the risk of litigation. It does not mean that you cannot fire the employee, but it may warrant more careful consideration about what steps you can take to mitigate the risk.

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