Nine Tips for Strong Probationary Memos
Posted February 25, 2011
Putting an employee on probation has a chance of succeeding, but it is important that the document be worded correctly, as it may be the centerpiece of your defense against a wrongful termination claim. Here are a few tips for ensuring a useful document, both for maximizing the potential for the employee to succeed and to help defend against a subsequent claim:
- "Here is what you are doing wrong" -- be specific, and provide a list if appropriate;
- "Here is what we expect going forward -- it should mirror the list in #1;
- "Here are our suggestions for improvement" -- if the employee knew how to fix it, he wouldn't be in this mess;
- "We would like you to prepare a memo, due back by [date], indicating how you intend to achieve the improvements identified " -- This forces the employee to buy into the process; if the employee ignores the request, send the employee a reminder memo and give one last chance;
- "It's a [45/60/90] day probation" [there is no law] -- but it' not a free ride; "We will need to see immediate and sustained improvement or we may be forced to end the probationary period early and terminate";
- "There are three possible outcomes: 1) "You succeed and go off probation" [ and make sure to send a memo at conclusion to remind him that it won't be probation if he regresses]; 2) "You improve somewhat, but not enough, and we extend your probation"; 3) you fall short and we are forced to end your employment";
- "Please remember that this probation is designed to assist you in again becoming a productive member of our team. However, it does not change you at-will employment status with the company."
- "If you have any questions about this probationary period, please don't hesitate to discuss them with me."
- Check back with the employee during the probationary period, and consider documenting progress (or lack thereof) in weekly, bi-weekly or monthly intervals. Remember, the more documentation the better.
For more questions regarding this issue, contact Jonathan Fraser Light.