What Is A Probationary Employee? (2026)

What Is a Probationary Employee?

A probationary employee is a new employee who is currently completing an initial evaluation period called a “probationary period.”

If the employee performs well during the probationary period and seems like a good culture fit for the company, they may be offered a contract at the end of it. In some cases, employers start with a conditional job offer that depends on meeting certain requirements, such as background checks or successful completion of the probationary period. If they don’t, their position may be terminated.

How Long Does a Probationary Period Last?

Typically, a probationary period will last anywhere from 30 days to six months. You should always clearly define the probationary period for new employees.

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Legal Rights and Protections During Probation

Probationary employees may not have all the protections afforded to permanent employees. However, they are still entitled to minimum wage and overtime pay as outlined in the Fair Labor Standards Act (FLSA).

Probationary employees have the same anti-discrimination and harassment protections as other employees, and they must be covered by your workers’ compensation insurance.

If you require employees to complete a probationary period, you’ll still need to follow labor laws.

What Employers Should Evaluate During the Trial Period

During the probationary period, you should monitor new employees to assess the following:

• Their attendance and overall reliability
• Their job performance
• How well they fit into the company culture
• How adaptable they are
• How coachable they are
• Their communication skills
• Their overall compliance with workplace policies

You shouldn’t just silently observe probationary employees and then make a determination at the end of the period. It’s best to check in regularly to offer feedback and support.

What Happens if You Need to Fire a Probationary Employee?

At-will employment is the presumption in all states except Montana. This means that, in most states, employers have the power to fire workers for any reason, or no reason, unless they are protected by a statute or have a temporary or permanent employment contract.

So if the probationary employee was hired at will, you generally can terminate them for any reason during or after their probationary period. You do not even need to explain your reason. However, you may choose to give a reason in some states to avoid liability for unemployment benefits if you fired the worker for cause.

Conversely, contractors can typically only be fired for the grounds given in the termination clauses of their employment contracts. If your worker is a contractor, the contract should describe the grounds for termination during the probationary period. You then have the flexibility to terminate the worker for failing their probation.

Alternatively, you could offer a temporary employment contract and simply not renew or extend it at the end of the probationary period if you choose not to retain the worker.

Keep in mind that you can unintentionally give contract rights to at-will workers when you write about your probationary period in your offer letter or employee handbook. If your employee handbook says that probationary workers may be fired for “the following reasons” before listing several grounds, an employment lawyer might argue that you violated the terms of your handbook if you fired a worker for an unlisted reason.

It’s important to consider having an attorney review your employee materials to help prevent giving terminated probationary workers the right to sue for wrongful termination.

Best Practices for Managing and Supporting New Hires on Probation

These tips may help you reduce stress and avoid problems during the probationary period:

• Give new hires measurable, realistic goals so they can monitor progress.
• Regularly check in and offer feedback.
• Keep written records of training and feedback.
• Assign the new hire a mentor to offer guidance.
• Address any issues immediately instead of waiting until the end of the period.

During the probationary period, new hires are also deciding whether your company is the right fit for them. Being supportive during this time increases the likelihood that your new hire will stay with you.

Want to Learn More?

As an employer, you face legal and compliance challenges on a daily basis. When you understand your rights and obligations under employment law, you’re less likely to land your company in legal hot water.

ConsumerShield is proud to serve as a legal resource for employers and employees everywhere. Find out how our tools can help you today!