For what reasons can I be fired during my first 90 days? - The Kielich Law Firm - Bedford, Texas lawyer

13 July 2013
Adam Kielich
13 July 2013, Comments: 0
It is extremely common for employers to establish the first thirty, sixty, or ninety days as a probationary period. Employers do this to set the expectation that they are “test driving” an employee during training and the early days performing the job. Employers are setting the expectation that if you cannot show up for work on time, work your schedule, perform the job duties and work well in the workplace, you can be immediately relieved of your position. Although companies are free to terminate employees (at least those who do not belong to a union or work under an employment contract) for these reasons at any time, companies are always worried about having to pay unemployment benefits and possible discrimination claims. By setting the expectation they can terminate you upfront for any reason (or no reason at all) during that “probationary” period it makes it difficult to prove unemployment benefits are due or that an employee was terminated illegally.

As far as the law is concerned, there is very little difference in how employees are treated early on and later in the career. An employee terminated early on for showing a pattern of tardiness likely justifies termination under the assumption that the pattern will continue. So that employee is probably not due unemployment benefits. Although a company could fire an employee who has been with the company for thirty years for showing up late, the company may have a more difficult time proving cause for a variety of reasons so unemployment benefits may be due.

However, no matter how long an employee has worked for the company, the company may not terminate an employee for any illegal reason. This particularly includes both outright discrimination and discrimination covered up by a legitimate reason. For example, an employer may decide to release a woman employee because she doesn’t “fit in” with the predominately male environment and took offense to some sexual jokes during lunch. That would be an example of outright discrimination if the company fires her for being a troublemaker (for complaining) or not being a good fit with coworkers. To change the hypothetical, let’s say the same woman employee takes offense at sexual jokes and the boss sees her as a possible source of problems if she complains to HR. He knows he can’t fire her for getting offended by the jokes without getting himself in trouble. When she shows up a few minutes late, days later, he fires her for being tardy during the probationary period. Although it was legitimate (under the law) to terminate her for being tardy, the underlying reason was discrimination on the basis of sex.

If there is both a legitimate reason and a discriminatory reason for the termination, the law will support the legitimate reason if it is independently legitimate. So looking at our hypothetical, tardiness is the legitimate reason but we need to see if it is independent. In most cases we would look at other employees who were tardy during the probationary period and see what disciplinary steps were taken. If we find several other employees were tardy but were not fired, then it might prove the legitimate reason was just a pretext to fire her for discrimination. However, if we look at the records and find this boss always fires new employees who are tardy then it is probably independently legitimate and the courts would not provide relief to our hypothetical employee.

Although the probationary period may make it more difficult to prove discrimination or other illegal action in the workplace against new employees, it does not mean it is impossible to prove. If you believe your employment rights have been violated, you should speak to an employment attorney to discuss the situation and how to defend your rights.

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