What Many Nonprofits Misunderstand About Employee Probationary Periods

A new hire’s first few months with a nonprofit organization is a crucial time for onboarding, communicating expectations, and setting up the employee to achieve success. However, the common framing and messaging of this time as a “probationary period” has led to many misunderstandings about the legal status of new employees and what employers should be aspiring to achieve during this introductory phase.

Nonprofit organizations often use some type of formal or informal introductory period for new employees, often referred to as a “probationary period.” Introductory periods can be verbally communicated or formally reflected in the organization’s employee handbook, offer letters, employment agreements, and/or other similar human resources documents. These periods tend to range from 30 days to 90 days, with some lasting as long as 6 months.

However, it is a common mistake to think of this time as a “trial” period. In other words, a period in which employers have the special privilege of assessing an employee’s on-the-job performance, with minimal cost and consequences, before making a final decision about whether to transition the employee to a “permanent” position. As discussed below, this is a flawed framing, which misunderstands some key legal concepts and deflects attention away from what should be the main goals of an introductory period.

1.         Common Misconceptions

The most common misconception is that it is easier and less risky to terminate an employee if things don’t work out during the introductory period. Many organizations erroneously assume that since the probationary period has been framed as “non-permanent,” these employees have less entitlement to continued employment than employees who have been with the organization for a longer time.

This is incorrect. In the United States, all employees, regardless of length of service, are generally presumed to be “at-will” employees. This means that employees can be terminated (and likewise can resign) at any time and for any reason or for no reason, so long as they: (1) are not expressly promised a more protected status: and (2) are not terminated for a reason that is specifically prohibited by law (for example, discrimination based on race, sex, gender expression, disability, or other characteristics protected under federal or state law).

Planning Tip – The introductory period language in an organization’s employee handbook, offer letters, employment agreements, and other human resources documents should include a clear statement that completion of the introductory period does not alter the at-will status of any employee. This will help to avoid any unintended implication that completion of the introductory period entitles employees to additional protections beyond at-will status.

Moreover, anti-discrimination laws and other employment protections apply equally to all employees no matter how long they have been in their positions. For example, it is no more permissible to terminate a new employee on account of race or disability than it would be to terminate a longtime employee for these reasons, and employers should follow the same processes in all cases to ensure that the records do not suggest discrimination was present in the workplace.

Thus, organizations should understand the introductory period as a time for additional basic job training, more frequent check-ins, and the other practical onboarding and orientation steps discussed below, rather than a period during which employees have a lower level of job protection.

Another misconception is that new employees can be automatically excluded from all employee benefits merely by designating their “probationary” status in the employee handbook. While new employees may be temporarily excluded from some benefits through careful drafting of the employee handbook, the situation is more complicated for some types of benefits.

For example, the required waiting period before an employee becomes eligible to enroll in a group health insurance plan must be set forth in the plan document and summary plan description, and these waiting periods generally cannot be longer than 90 days pursuant to federal law. Keep in mind that any waiting period set forth in the plan document and summary plan description will apply to all employees who otherwise meet the hours requirements to be eligible (e.g., full-time employment, often defined as working 30 hours or more per week), and these terms will supersede statements to the contrary limits or requirements in an employee handbook or other policies.

Similarly, eligibility for 401(k) and many other retirement plan benefits is strictly regulated by the Employee Retirement Income Security Act (“ERISA”). ERISA generally permits employers to impose a waiting period of up to 1 year before new employees are eligible to participate in a 401(k) plan. However, as with health insurance benefits, this waiting period must be set forth in the plan document and summary plan description. Certain other restrictions and exclusions may be permissible but should not be implemented before first consulting with an ERISA attorney.

Paid and unpaid leave benefits are another potentially complicated area. Depending on state law, it may be possible to exclude new employees from accruing and/or using vacation and/or sick leave during an introductory or probationary period through careful drafting of the employee handbook. However, organizations should be aware that a growing number of states impose minimum paid sick leave requirements that apply to all employees who work in the state, regardless of length of service. And while the federal unpaid leave requirements under the Family and Medical Leave Act (“FMLA”) do not apply to employees until they have worked for a “covered employer” for at least 12 months and have had at least 1,250 working hours, many states impose FMLA-like requirements that do not use these same length of service requirements. 

Finally, many employers have a more fundamental misconception that the main purpose of an introductory period is for employees to prove they are qualified for the job. This assumption, which tends to be reinforced by use of the phrase “probationary period,” overlooks the nature of the on-boarding and assessment process and the goals that will help both the organization and their new employees to be successful and perform at their best.

2.         The Optimal Purpose of an Introductory Period

To better understand the introductory period, let’s start with a brief discussion of the recruitment process, which can be likened to old fashioned “courting.” Courting is a period during which parties attempt to both attract and assess interest. During recruitment, the same dynamic exists between an organization and a prospective employee. It’s a mutual vetting process, after which the parties decide on whether to move forward in relationship. If the answer is yes, they begin getting to know each other on a deeper level, which is where the introductory period begins.

The introductory period signals a new phase. The parties have decided to move forward with an employment relationship, however, there is continued mutual evaluation to help ensure a good fit. During this period, the employer determines whether the employee has the skills and other qualifications to succeed, while the employee assesses whether they are a good match for the position and the organization.

Attracting the right people and ensuring that new hires fit within the organization’s workplace culture is critically important. However, organizations must remember that recruitment and introductory periods are times of mutual evaluation by both parties. New employees are gauging an organization’s workplace culture from the start. They’re looking for alignment between the description of the organization’s culture and their firsthand experience.

Additionally, it is important to remember that this process of mutual evaluation will continue throughout an employee’s service and long beyond the introductory period. Over-emphasizing the assessment and evaluation function of the introductory period often leads employers to lose sight of other, more important longer-term goals and priorities of this crucial phase in the employment relationship.

Employers should instead be thinking about the introductory period primarily as a time during which they can help position new employees and the organization for success. They must meaningfully connect with new hires, seizing this time to communicate expectations and workplace culture, while also creating a welcoming environment and striving to meet employee needs. Doing so ultimately positions organizations to reach peak performance by cultivating and harnessing the collective potential of individuals, teams, and leaders.

3.         Practical Steps

Some practical steps an organization can take to achieve these objectives include:

Preparation

• Send a friendly welcome email before the employee's first day, detailing the schedule, parking information, dress code, and any necessary documentation they need to bring.

• Ensure their desk, computer, and any necessary supplies are ready before they arrive.

First Day & Week

• Greet new employees on their start day and introduce them to their immediate team members and supervisors.

• Provide an orientation for new employees that gives an overview of the organization’s mission, values, organizational structure, and goals.

• Review the job description, responsibilities, and performance expectations so they understand what is expected of them during the introductory period and beyond.

• If applicable, create a structured training plan that covers the skills, tools, and knowledge they will need to excel in their role.

• Pair each new employee with an experienced team member who can answer questions, offer guidance, and provide insights into the organization’s culture.

• Organize a team lunch or informal gathering to introduce the new employee to their colleagues in a relaxed setting.

The Rest of the Introductory Period

• Schedule regular check-ins to review their progress and provide actionable constructive feedback.

• Encourage participation in organization events or team-building activities to help them build relationships beyond work tasks.

• Make sure they have access to all the necessary tools, software, and resources they need to perform their job effectively.

• If they encounter any challenges, provide guidance and support to help them overcome obstacles and succeed.

• At the conclusion of the introductory period, conduct a comprehensive review to discuss their performance and any improvements that may be needed going forward.

At the most fundamental level, employees want to do a good job, grow as professionals, feel seen, and be valued. An employer’s role is to facilitate this by creating an environment where the new employee feels supported, valued, and motivated to contribute their best during their introductory period and beyond.

Sheila Amo is the founder and CEO of The Perry Perspective, LLC, a consulting firm based in the DC Metropolitan area. The Perry Perspective specializes in leadership development, executive presence coaching, workplace culture assessment, and strategic talent management.

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