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Do I need to put an employee on probation before firing? Does it matter if she is new?

Provided by:  Jennifer Kirschenbaum, Esq.

July 11, 2017



Hi Jennifer,

A newer employee is having ongoing difficulty functioning in her job. In addition to be out a lot, she is also failing to work to a basic standard due to frequent errors.

Do we need to put her on probation first or could we terminate for cause? 

Dr. B


The only reasons you would have to put an employee on probation before firing are: (i) you entered into a contract with the employee that requires probation before firing; or (ii) your practice has a policy that employees are placed on probation before being terminated.  If the practice is in NY, or another at-will state, and you have no contract and no policy requiring probation, you are free to terminate at any time for any reason.  

If you plan on making an argument this individual should be denied unemployment benefits, you better make sure you have detailed documentation you fired for cause - and what those instances substantiating cause were.  

I do not see any difference if the employee is new - unless the practice has a specific policy related to new employees - or if the differentiation is related to unemployment benefits.  A new employee may not be able to go on unemployment on your policy - need to qualify... 

If you want help with the termination, or feel you need to obtain legal protections in separating from this employee - with a release - contact me BEFORE you fire.   

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