If you are a California state employee serving a probationary period, you do have important legal rights, which may protect you from being fired during probation. At the same time, those rights are considerably more limited than those enjoyed by employees who have successfully completed probation and obtained permanent status with the State of California (or local city / county government). Understanding those limitations can make the difference between preserving your rights and losing them entirely.
What Is a Probationary Period?
Most California state employees are required to successfully complete a probationary period before obtaining permanent civil service status. Depending on the position, probation may last anywhere from six months to one year or even longer. The probationary period is not merely a formality. It is essentially an extended examination period during which the State evaluates whether an employee can satisfactorily perform the duties of the position.
Unlike permanent employees, probationary employees generally may be fired during probation without the employer having to establish “cause” in the same manner required for disciplinary actions against permanent employees. California law gives state agencies broad discretion in determining whether a probationary employee has demonstrated the qualifications, judgment, work habits, and performance necessary to successfully complete probation.
An employee may be rejected during probation because of the following concerns, some of which are more subjective than others:
- Work performance;
- Attendance issues;
- Ability to perform assigned duties;
- Communication or interpersonal issues;
- Reliability and judgment;
- Failure to meet the employer’s expectations for the position.
Importantly, the employer is not required to prove misconduct or establish “good cause” in the same manner required when disciplining permanent employees. This is one of the biggest differences between probationary and permanent status.
However, being on probation does not mean that an employer can do anything it wishes. California probationary employees remain protected by numerous state and federal laws. Depending upon the circumstances, a probationary employee may still have claims involving:
- Disability discrimination;
- Failure to provide reasonable accommodations;
- Failure to engage in the interactive process;
- Religious discrimination;
- Race, sex, age, national origin, and other protected classifications discrimination;
- Retaliation for engaging in protected activities;
- Whistleblower retaliation;
- Family and medical leave violations;
- Labor and union-related protections;
- Constitutional and due process protections in limited circumstances.
Simply because an employee is rejected during probation does not automatically mean the decision was lawful. For example, rejecting an employee shortly after requesting disability accommodations or engaging in protected whistleblowing activities may present very different legal issues than rejecting an employee because of documented performance deficiencies, rude emails, or generally not getting along with management or co-workers.
Not Every Unfair Decision Is An Illegal One
Many probationary employees understandably become upset when they receive criticism from supervisors that they believe is inaccurate or unfair. However, unfair is not the same as illegal. A supervisor may be mistaken about an employee’s abilities. The employer may place unrealistic expectations upon the employee. The employee may even be treated differently than other coworkers for reasons that have nothing to do with discrimination or retaliation. Those circumstances do not automatically create a legal claim. The law generally does not prohibit employers from making bad business decisions. Rather, it prohibits employers from making decisions for unlawful reasons. Determining whether a probationary rejection was merely unfair or actually unlawful often requires careful analysis of the surrounding circumstances and documentation.
Timing and Deadlines Matter
One of the biggest mistakes probationary employees make is waiting too long to seek legal advice.
Many employees assume they can simply challenge the decision months later if necessary. Unfortunately, that is not always true. Certain appeals involving probationary rejections are subject to extremely short deadlines, especially an SPB appeal after an adverse decision or dismissal has been upheld at a Skelli hearing. Likewise, administrative complaints involving discrimination or retaliation may involve their own procedural requirements and deadlines.
By the time some employees decide to consult an attorney, valuable evidence may have been lost or important deadlines may already have passed. If significant issues arise during probation, it is usually better to understand your options sooner rather than later.
Be Careful About Escalating Workplace Conflicts
Another common mistake occurs when probationary employees immediately assume that every criticism is motivated by discrimination, retaliation, or bad faith. Sometimes that is true. Often it is not. Turning a relatively minor disagreement with a supervisor into a major workplace dispute can unintentionally make matters substantially worse. Responding impulsively or emotionally may create entirely new issues that otherwise would never have existed. We have seen time after time, how one email that rubs a manager the wrong way drives that manager to do what they can to get the employee dismissed, if for nothing else – their “attitude.”
This does not mean employees should simply surrender their rights. Rather, they should act strategically and understand both the legal and practical consequences of their decisions. Sometimes, aggressively challenging an employer’s conduct is absolutely necessary. Other times, preserving one’s professional relationships and documenting concerns carefully may prove to be the wiser course.
If you are facing rejection during probation, have recently been terminated during probation, or believe your employer’s actions may have involved discrimination, retaliation, disability accommodation issues, or other protected conduct, obtaining timely legal advice may make a substantial difference in protecting your rights and preserving available remedies. On the other hand, it can also help you avoid wasting a lot of time, energy, and money pursuing a case that you are highly unlikely to win or which is downright meritless.