"Probationary" Periods for New Employees May Put At-Will Employment At Risk
Connecticut is an at-will employment state, meaning that employers can terminate an employee's employment for any reason at any time, with or without cause. Employees are also free to leave their jobs at any times. There are exceptions, of course, to that general rule. But overall, when an employer's offer letter to an employee confirms that the employee is "at-will", that should do it.
However, some employers -- while contending that they are keeping the at-will status -- have language in their handbooks that suggests that the first 90 days of employment are "probationary."
A decision by U.S. District Court Judge Mark Kravitz released late yesterday in Defontes v. Mayflower Inn suggests that this language could potentially turn an at-will employee into something else. I use "potentially" because the court does not conclude this definitively; rather, the court suggests that this is an issue for a jury -- not a court -- to decide.
The District Court, in denying a motion for summary judgment by the Mayflower Inn, found that it was a disputed issue whether the handbook provisions changed an employee's at-will status into something else. The Court did not conclude that the handbook did, in fact, make definite promises to the employees -- only that it could not decide that issue in the absence of a jury trial.
It is not at all clear what the Handbook promised the Inn's employees. For example, does the use of the term "Probationary-At-Will Period" imply that after 90 days an employee is no longer at will? It is undisputed that [the employee] worked at the Inn for more than 90 days. Did he then become something other than an at-will employee? Was he, at a minimum,
entitled to a performance review before termination? It is undisputed that [the employee] was summarily fired without any explanation of the reasons for his termination or whether his performance was inadequate in any way. Given the ambiguity of the Handbook language (coupled with the fact that no party has provided the Court with any evidence regarding the Inn's course of performance under it), the question of whether the Handbook gives rise to an implied promise that after 90 days employment will not be terminated without cause, is one for a jury, not this Court. As the Connecticut Supreme Court stated in Gaudio, "In the absence of [express contractual] language . . . the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. Because it is an inference of fact, determining the intent of the parties is within the province of the jury . . . ."
Could the employer have done more to prevent this claim? Monday-morning quarterbacking on cases like this is easy so I'll resist the urge and leave it to you, as readers, to analyze the court's decision. (I would suggest, however, that you ponder the decision it over a meal at the Mayflower Inn, which was written up by the Hartford Courant just last week or so.)
What I take away from the case are lessons that are applicable for all sorts of employers, such as:
- Updating an employee handbook. I previously discussed the need for vigilance at this earlier post.
- Ensuring that a handbook has an appropriate disclaimer that the policies do not change an employee's at-will status.
- Consider eliminating the "probationary" period language for the "introductory" period of employment. Instead, consider adding that an employee's performance will be reviewed after 90 days. If an employee's employment needs to be terminated, that will be an opportune time -- with or without a "probationary" period. After all, if an employee is at-will, then they can be terminated without necessarily being on "probation".
- Ensuring that the employee not only receives the handbook but signs an acknowledgment of receipt.
While this list is not intended to be exhaustive, updating policies and procedures may be one of the easiest ways for an employer to reduce their exposure to liability. Cases such as this one show the importance of doing so.
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On Friday, a new blogger for Footnoted, 
