Terminating the Employment Relationship

The most important thing an agency must remember about probationary periods is that the agency must follow its rules. For example, the failure to follow the agency’s rules for separation of an employee during the probationary period means the employee becomes a “for cause” employee and is entitled to all the protections afforded such employees. Probation of indefinite duration is also subject to challenge. For example, a provision that provides for probation to continue until the employing department notifies human resources that the employee has successfully completed probation creates the risk that the term of probation is so vague as to make it unenforceable. b. Extending Probation Courts are frequently critical of attempts to extend probation, finding that rules setting the length of the probationary period are to be strictly construed in favor of the employee. In Winter v. City of Los Angeles 10 , the City completed all but one of the necessary steps to separate a probationary employee prior to the end of his probationary period. The one uncompleted step was to send a copy of the separation form to the Board of Civil Service Commissioners (a requirement contained in the City’s local rules). The City argued that the probationary period should be extended by the length of time the employee had been on administrative leave. The Court, however, ruled that administrative leave did not operate to extend probation. Courts have been willing to uphold extensions of probation if the extension is expressly permitted by local rules in effect at the time the probationary employee is hired. For instance, a rule that allows probation to be extended by the length of time an employee is absent is valid and enforceable over the later objection of the employee. Such an extension will only be upheld if there is strict compliance with the applicable rules. Any such rule should state clearly that if the probationary period is to be extended, the probationer shall be informed in writing. It should also specifically identify the procedures for extending probation. An agency must then follow those procedures or subject itself to legal action. c. Releasing a Probationary Employee Many public employers struggle with what to record as the reason for releasing a probationary employee. The better practice may be to state nothing more than “failure to meet probationary standards” or some other similar general description. Identifying the specific reasons for separation creates a risk of stigmatizing the employee, and may result in the entitlement of a name-clearing hearing. (See discussion above regarding liberty interest hearing.) Probationary employees often believe that any rejection during the probationary period is stigmatizing because it adversely affects their chances of obtaining another job. However, if the reasons for rejection are related solely to inadequate performance, courts have found that the employee does not have a right to a name-clearing hearing. It is also important to remember that there is no legal requirement to keep a probationary employee for the entire length of the probationary period if the employee is “not working out.” Probationary employees can be released at any time during their probationary period. An agency that has realized that a probationer is “not working out” should release the employee sooner

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 15