Private sector employment includes non-profits (private corporations with non-profit status). The law, however, does not always treat public sector employment the same as private sector employment. When writing these e-zines, I have attempted to carefully draw this distinction, when the distinction is important. Last month, I wrote an e-zine on severance pay. Unfortunately, as one of the recipients kindly pointed out in a return e-mail, I overlooked the fact that severance pay is by and large forbidden in public employment. Various federal and state statutes prohibit the “gifting” of public funds and severance pay is typically considered a gift – no work, no pay. Thus, while there may be a gray area over whether the employee must work the last few days before leaving employment in order to receive full compensation, clearly multi-month severance packages cannot be put together for public employees. I feel much better now that I have cleared the record on this issue.
On to this month’s topic. On August 10, of this year, one of my colleagues and I will be speaking at a national conference in Las Vegas, Nevada. For the record, I most enjoy speaking at conferences in: New York, Orlando, Anaheim, Las Vegas, and anywhere in Hawaii. The focus of the presentation is on managing the trial services employee. The presentation will look not only at the organizational and legal issues around the trial services period but will also map out steps that can be taken to initiate the new employee into the organizational culture. The early work that I have completed to prepare for this presentation has led me to believe that it is a topic worth discussing in the e-zine. Specifically, I intend to use the next three or four e-zines to construct an outline for effectively managing the trial services employee. In this issue I will begin by looking at two critical issues: 1) what should we call the trial services period, and 2) what significance does employment law place on the trial services period.
What to call it?
Most of the personnel handbooks that I run into still call the trial services period a “probationary period.” For a number of reasons, I believe that using the term “probationary period” to discuss the first stage of an individual’s employment is a very poor title. I recognize that it is commonly used this way but believe the term “probationary” has too much connotation of wrong-doing. Felons serve a probationary period in lieu of jail time or they are placed on probation post jail. Employees are put on probation when they have done something wrong. Thus, starting employment on probation carries the unnecessary and inappropriate sense of wrongdoing.
The term “trial services period” carries with it the concept that one is being given the opportunity to demonstrate capabilities. This is a time of training and development. It is also a time that both parties, employer and employee, can assess whether the position is a good fit for the employee. Most importantly, it is a golden opportunity for the organization to build off of a new employee’s enthusiasm for the job and appreciation for being given the job.
Significance of Employment Law
From the standpoint of employment law, there are good reasons why an employer benefits from distinguishing between an early trial services period and regular employment. First, either through a labor contract or through the organization’s personnel policies, most employees are afforded a grievance procedure by which to bring a formal complaint. Almost all of the labor contracts that I have reviewed clearly deny to the trial services employee the right to grieve dismissal during the trial services period. In other words, if you remove the trial services employee from his or her employment, that separation cannot be challenged. If you do not have a labor contract or where one does not apply, personnel policies can still distinguish between the rights of the trial services employee and the rights of the regular employee as regards the filing of a formal complaint.
Second, in the landmark Supreme Court case called Loudermill (1985), the Court emphasized that employment status in the public sector was a creation of the policies and rules promulgated by the employer. The Court goes on to emphasize that once the employer has created an employment status that carries with it a sense of permanency (regular employment), then that employee has a property interest in their employment and must be granted full due process for a discharge. This decision by the Court, in the view of legal authorities, clearly permits the employer to establish a trial services period that would carry with it no constitutional due process issues rights (no expectation of permanency thus no property interest).
While the Loudermill decision applies only to public sector employment, I believe the Court’s logic in that decision has broad applications. There are many good reasons why it is advantageous to make a clear distinction between the permanency of regular employment and the impermanency of trial services. While the next e-zine will look at the importance of making that distinction in a positive way, as a general matter of employment law it is often useful to make that distinction.
Reflecting over the points outlined above, I am closing this e-zine by offering three suggestions:
Review your personnel policies and/or your labor contract and determine whether the word trial services better reflects the early period of employment in your organization than does the word probationary period. If you have not made the change, is it possible to do so?
Review the language that describes the trial services period (probationary period) in your personnel policies or labor contract. Is it overly negative, focusing on consequences for the failure to perform? Without diminishing a clear message that separation can occur if the employee is not successful during the trial services period, can the language be written to emphasize that this is an opportunity for the new employee to shine?
Does the language of your labor agreement and/or personnel policies clearly indicate that the separation from employment for the trial services employee is distinctly different than the discharge of a regular employee? In my view, an organization ought to discharge a regular employee for cause while it separates a trial services employee for failure to pass the trial services period. The two are distinctly different. Similarly, the employer should not be using formal discipline on the trial services employee. If you cannot bring forth the desired behavior with coaching and training, then the employee has not passed trial services and should be removed from service.
One last point, personnel policies/labor contracts also use the concept of a trial services period (probationary period) for a promotion. Again, I believe it wise to focus on the positive. One difference related to the trial services period for promotion will involve the right of an employee to return to a prior position if he or she fails the trial services period. I cannot imagine that one would want to promote an individual if he or she was doing a poor job in their existing position. Thus, it seems to me that the right of return makes good sense. The policies, however, should be clear on this point.
As noted above, in June we will turn to the “art” of successfully managing the trial services employee and the organizational benefits that derive from putting a greater emphasis on working with the new employee.
Quote of the month:
We cannot teach people anything;
we can only help them discover it.
- Galileo
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