What do airplane life vests and probationary employment periods have in common? Both are ubiquitous in their respective context, both are often useless, and they may even do more harm than good.
Let me explain; the Wall Street Journal’s Scott McCartney recently wrote an article, “An Airplane Safety Measure That’s Not Much Use. In the article, Mr. McCartney notes that in the history of modern commercial flying, a life vest has never saved a life.
In fact, experts indicate that problems with their design and where life jackets are located limit their usefulness. As an example, Mr. McCartney cites to the 2009 splashdown of Flight 1549 in the Hudson River where only 33 of 150 passengers on that flight had a life vest upon being rescued. And only four of these people managed to properly don their life jacket.
As to the detriment, eliminating life vests means losing about 200 pounds of cargo on a medium sized jet. This amounts to saving approximately a million plus gallons of fuel a year for a large airline. Additionally, flight attendants must spend time checking each seat to make sure it has a vest before take-off.
The Value, or lack thereof, for Employment Probationary Periods
Turning to probationary employment periods, they are also routinely found in many businesses. Probationary periods apply to “new hires.” They last for durations often ranging from 30, 60, or 90 days. Either expressly or implied, the employer will conduct some measure of additional evaluation and feedback during the probationary period and upon successfully completing it, the employee is no longer on probation.
So two assumptions are created with a probationary period: (1) An employee just has to make it to through probation; and (2) Upon successfully completing the probationary period, the employee’s employment is now somewhat more permanent.
But these two assumptions illustrate why probationary periods are useless. Michigan, like most states, presumes employment is “at-will.” This means a company can terminate an employee for any reason — probation or not — so long as it is not not an illegal reason, e.g., because of race, gender, pregnancy, religion or other areas protected by federal or Michigan employment laws. Further, at-will employment applies to newly hired employees or long-time employees.
So with at-will employment the default, where is the value in differentiating between your company’s new hires and your long term employees if both can already be terminated for any reason that is not unlawful?
As to the detriment, the presumption of employment at will can be overcome if an employee provides sufficient proof of either a contractual provision for a definite period or a provision forbidding discharge absent just cause. Does a probationary employment period of 30, 60, or 90 days sound like a definite period? Or is something more now required for termination after the probationary period? If the employee policies and probationary documents aren’t carefully written, it could expose your company to costly litigation to sort these issues out.
Just ask the employers involved in consolidated cases captioned Rood v. General Dynamics Corp. In those cases, the employers had the opportunity to go all the way up to the Michigan Supreme Court on the central issue of whether the probationary period for newly hired employees overcame the presumption of employment at will. The Court ultimately found it did not, but you can bet it was not a cheap determination for the employers.
A few Considerations if you Decide to Ditch the Probationary Period
First, whether your company intends to use a probationary period or not, it still needs an employee handbook to cover all other aspects of the employment relationship. This handbook needs to be clear that employment is at will and this at will status must be consistent in your employment related documents – from applications, interviews, and offer letters.
Second, it is important to understand that eliminating a probationary period does not mean you have to treat new hires to all the perks and benefits available to longtime employees. Instead of using a probationary period for newly hired employees, simply designate the time when new employees are eligible for other company benefits, including seniority, paid holidays, and eligibility for vacation and military leave. But talk to an employment attorney about making sure that any distinction and withheld perks are lawful.
For more information about this article, as well as drafting employee handbooks and complying with federal and Michigan employment laws, contact employment attorney Jason Shinn. Since 2001, he has worked with employers to address all aspects of the employment relationship – from hiring to firing and everything in between – including litigating these issues in federal and Michigan courts.