Terminating the Employment Relationship

An employer’s failure to provide a required liberty interest hearing does not entitle the employee to back pay unless the agency’s own rules call for back pay. Curiously, the officers who were denied a liberty interest hearing in the actual Lubey case were ordered reinstated. Presumably, thereafter they could be immediately dismissed if the agency takes the required procedural steps. 2. P ROBATIONARY E MPLOYEES Probationary employees are essentially a sub-category of at-will employees. In most agencies, probationary employees make up the largest group of at-will employees. The probationary period is considered an integral part of the recruiting, testing and hiring process. The period is designed to allow employers to evaluate both objective and subjective factors in assessing whether the employee is a good fit for the job, the organization and its employees. If not, the employer should be able to reject the employee prior to the end of the probationary period without cause and without the right of appeal. a. Defining the Probationary Period Local rules typically establish the legal requirements attached to probationary employment, including the length of the probationary period. There is no independent legal requirement setting a maximum length for the probationary period, but normally, entry level probation ranges from 6 to 18 months. The longer period is typically reserved for safety employees who spend the first part of their employment attending a training academy. Many agencies have changed the description of the length of the probationary period from months to hours. For example, instead of a 12 month probationary period, probation is described as lasting for 2080 work hours. Although this is the hourly equivalent of 12 months, using work hours to measure the length of the probationary period focuses on the time spent actually working. If the probationer is off work for any reason, then those hours do not count toward satisfying the probationary period. In these instances, it may take more than 12 months for the employee to work the required 2080 hours. Any agency desiring to change the description of the probationary period (e.g. from months to hours) would likely have to meet and confer with recognized employee organization(s). If the agency has part-time employees who serve a probationary period, the agency should carefully specify what the period is. For example, the agency should specify the prorated portion of 2080 hours (if the full-time employee probationary period is one year) for part-time employees. The most important thing an agency must remember about probationary periods is that the agency must follow its rules. For exampl e, 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

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 14