The 90-Day Myth
Many employers treat probation periods like a legal gray zone. "We're still evaluating." "They're not really permanent." "We can let them go for any reason."
Yes, you can end employment during a probationary period. But that doesn't mean you're free from risk. The law doesn't carve out exceptions for bad onboarding, vague policies, or poor documentation.
Welcome to the lawsuit: the one that starts on Day One.
This article explains what probation periods really mean, what they don't protect you from, and how to set up the first 30, 60, or 90 days to protect both the business and the record.
The Plain English Rule: Probation Doesn't Mean "No Rules Yet"
The moment someone starts working, they're covered by every employment law on the books. Probation is not a legal loophole—it's simply an internal designation that has no bearing on your compliance obligations.
Whether it's 30, 60, or 90 days, probationary employees are protected by:
Discrimination and harassment laws (Title VII, ADA, ADEA, state laws)
Wage and hour regulations (FLSA, state minimum wage, overtime)
Leave laws where applicable (FMLA eligibility accrual, state sick leave)
Retaliation protections for complaints or protected activity
Your own handbook policies and procedures
⚡ Compliance Tip ⚡
New York's Wage Theft Prevention Act (WTPA) requires written wage notices within the first five days of employment—probation period or not. Missing this deadline can trigger statutory penalties of $50 per day, up to $5,000 per employee.
Even if you intend to assess fit during probation, you still must:
Onboard them fully with all required training
Issue all required notices (WTPA wage notice, I-9, handbook acknowledgment)
Track time accurately (especially for hourly staff)
Document expectations and performance from Day One
Explain how the probation period works and what triggers extension or termination
🚩 Common Pitfall 🚩
A "probationary" employee can still sue you. And they will if your process is sloppy, your definitions vary between hires, or termination timing looks suspicious.
Where Employers Get Burned
Too often, employers treat probation as a low-stakes waiting period—but this mindset leads to avoidable mistakes. When probationary employees raise concerns, make missteps, or simply don't work out, employers may take action without a proper record to back it up.
Documentation Disasters
Terminating a probationary employee after they complain about harassment—without showing any prior documented concerns
Treating probation as a blank check to delay onboarding, handbooks, or wage notices
Applying probation inconsistently—only for certain roles or departments
Failing to document feedback or expectations during the first 90 days
Process Problems
Ignoring early signs of underperformance, hoping it will resolve without intervention
Relying on verbal coaching with no written recap or personnel file entry
Assuming you can "wing it" because it's early employment and no one will challenge the process
🔎 Audit Red Flag 🔎
An empty file doesn't say "new hire"—it says "bad process." And that's all the leverage an employee needs in court. If your first documented performance concern appears in the termination letter, you've already lost the narrative.
Case Study: The "Invisible" Performance Problems
[Note: This is a hypothetical scenario based on common employer mistakes, not an actual case.]
The Setup
A boutique hotel hired a front desk associate on a 90-day probation. Within the first month, supervisors noticed recurring issues: late arrivals, guest complaints about attitude, and failure to follow check-in procedures. Managers addressed these verbally in passing—"Hey, you need to be on time"—but never documented a single conversation.
On Day 75, the employee mentioned to HR that a coworker had made an inappropriate comment. HR opened an investigation. On Day 82, with the investigation still ongoing, the hotel terminated the employee for "not meeting performance expectations during probation."
The Lawsuit
The employee filed a retaliation complaint with the EEOC, claiming the termination was payback for her harassment report. The hotel's defense? "We had ongoing performance concerns."
But when the EEOC requested documentation, the personnel file contained only the offer letter and the termination notice. No coaching memos. No written warnings. No documented conversations. The hotel eventually settled for $45,000 plus attorney fees—all for a probationary employee.
What Went Wrong
Zero documentation of ongoing performance issues
Terrible timing—termination one week after protected complaint
No separation between investigation and performance action
Managers relied on memory instead of contemporaneous records
Case Study: Documentation That Saved the Day
[Note: This is a hypothetical scenario illustrating best practices, not an actual case.]
The Setup
A healthcare staffing agency hired a medical office coordinator on a 90-day probation. The HR manager followed their standard probation protocol: formal check-ins at Days 30, 60, and 90, with written documentation after each meeting.
At the 30-day review, the supervisor noted the employee was struggling with their scheduling software and had missed several training deadlines. The supervisor documented specific examples, created an improvement plan, and scheduled weekly check-ins. All of this went into the personnel file.
At the 60-day review, progress was minimal. The supervisor documented continued issues, extended probation by 30 days, and made clear in writing that failure to improve would result in termination.
On Day 85, the employee filed a disability discrimination complaint, claiming they hadn't been accommodated for ADHD. Five days later, at the scheduled 90-day review, the agency terminated employment based on the documented performance deficiencies.
The Outcome
When the EEOC investigated, the agency produced a thick file: every review, every coaching memo, every improvement plan—all dated and signed before the discrimination complaint was filed. The complaint was dismissed. No settlement. No litigation costs.
🎯 Best Practice Highlight 🎯
The paper trail preceded the complaint. That sequence matters more than anything else. When documentation exists before protected activity, retaliation claims fall apart.
Sample 30-Day Probation Review Documentation
30-DAY PROBATION REVIEW
Employee: __________________________________ Date: ______________
Supervisor: __________________________________ Department: ______________
PERFORMANCE AREAS:
☐ Task Completion: Meeting expectations / Needs improvement / Below expectations
☐ Quality of Work: Meeting expectations / Needs improvement / Below expectations
☐ Team Collaboration: Meeting expectations / Needs improvement / Below expectations
☐ Policy Compliance: Meeting expectations / Needs improvement / Below expectations
Areas for Development:
Goals for Next 30 Days:
Overall Assessment: ☐ Progressing ☐ Progressing with concerns ☐ At risk of termination
Next Review Date: ______________
Supervisor Signature: __________________________ Date: __________
Industry-Specific Probation Considerations
Hospitality Probation
Key evaluation areas:
Customer service skills and guest interaction
Cash handling accuracy and tip reporting compliance
Team collaboration during high-volume periods
Menu knowledge and upselling ability
Appearance, punctuality, and hygiene standards
Common hospitality challenges:
High turnover making consistent evaluation difficult
Seasonal fluctuations affecting training opportunities
Varied shifts making supervision inconsistent
Fast-paced environment limiting feedback time
⏰ Reminder ⏰
New York's Hospitality Wage Order requires specific tip credit documentation from Day One. A probationary server is still covered—incomplete tip credit notices can trigger wage claims regardless of employment status.
Healthcare Probation
Critical assessment areas:
License and credential verification (complete before Day One)
Clinical competency and patient safety protocols
HIPAA compliance and documentation accuracy
Communication with patients, families, and care teams
Emergency response and escalation procedures
Final Thoughts: Day One Is Already Too Late to Start
The probation period isn't a grace period for employers—it's the foundation for everything that follows. What you do during this window either sets you up for success or sets up a lawsuit.
Early employment is still employment. Probationary employees have the same legal protections as everyone else on your payroll. The only difference is that you have a natural window to evaluate fit—but that window only protects you if you use it properly.
Document from Day One. Set clear expectations. Follow your own policies. And if termination becomes necessary, let the file tell the story.
If your defense is "we didn't really start anything yet," you've already lost.
Keep fighting the good fight.
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Legal Disclaimer: This article provides general information about New York employment law and is not legal advice. Every situation is unique. For specific guidance on your circumstances, consult with an employment attorney licensed in your jurisdiction.
