When you hire new employees, you want to ensure that what it says on their resume and what you’ve discovered about them during your interview process is accurate. Do they really have the skills needed to succeed in their positions? Will they fit well into the company culture and thrive on their team? New employees also have similar concerns about their fit and whether their working conditions will be as advertised.

A probation period is a typical way to address these concerns, and in this guide, we’ll address how they’re used, what their purpose is, and the rules that regulate probation periods in the United States.

Definition of a Probation Period in the United States

A probation period in the USA is a period of time from the start of a new worker’s employment that’s used for assessing the new employment relationship. During this period, employees are generally watched closely, given regular assessments like 30, 60, and 90-day checks, and helped to adapt to their new roles. If employers detect any areas of weakness in a new employee’s skills or difficulty adjusting to the company culture, they may give them extra attention during this period. However, workers may also be terminated during the period if they don’t live up to their promise.

Employees, too, use probation periods for assessment. They take this time to get to know how the organization works and to decide whether or not it matches their expectations. In a lot of cases, employees find that they don’t fit in well with their coworkers or that their employer demands too much of them. They may then decide to resign before they find themselves fully locked into jobs that they won’t be happy in the long term.

Lengths of Probationary Periods in the United States

Probation periods are not mandated by federal law or by most state laws. Therefore, there is no enforced maximum or minimum length that they need to conform to. 

At the same time, probationary periods in the US may be required due to collective bargaining agreements wherein unions and employers have agreed to use them to the benefit of both parties. In most cases, probation periods agreed upon through collective bargaining last between 30 and 60 days.

Even though probationary periods aren’t mandated, they’re still quite common in the US and often written into employment contracts. A 90-day probation period is standard in most industries and is commonly accepted as a period long enough to properly assess if an employee will work out long term.

Legal Considerations of Probation Periods in the United States

Probation periods are not mandated by federal law or by most state laws. Therefore, there is no enforced maximum or minimum length that they need to conform to. The main exception is Montana, where state law sets a default probationary period and a maximum length (see below).

At the same time, probationary periods in the US may be required due to collective bargaining agreements wherein unions and employers have agreed to use them to the benefit of both parties. Where a collective bargaining agreement applies, the length and conditions of any probationary period are set by that agreement and vary between employers, unions and sectors. Employers should check the applicable agreement rather than assume a standard length.

Even though probationary periods aren’t mandated, they’re still quite common in the US and often written into employment contracts. A 90-day probation period is common in practice and is often considered long enough to properly assess if an employee will work out long term. However, outside Montana, employers are free to set a shorter or longer period.

Special Exception: Montana

Montana is the only state in the USA that has a good-cause law, the Wrongful Discharge from Employment Act (WDEA) of 1987, codified in Title 39, Chapter 2, Part 9 of the Montana Code Annotated. Under the WDEA, a discharge without good cause is wrongful once the employee has completed the employer’s probationary period.This makes Montana the only non-at-will state and therefore the only one that requires probationary period regulations. The WDEA does not apply to employees covered by a written collective bargaining agreement or a written contract for a specific term.

In Montana, if an employer does not set a specific probationary period, or state that there is none, before or when the employee starts work, a 12-month probationary period applies by default. During the probationary period, employers and employees are both able to terminate the employment, on notice to the other party, for any reason or no reason. Essentially, Montana becomes like an at-will employment state for the duration of a worker’s probationary period. The employer may extend the probationary period before it expires, but the original period plus any extensions cannot exceed 18 months in total. In addition, any leaves of absence (absences of more than five consecutive working days, other than holidays and vacations) during probation do not count toward the probation period unless the employer affirmatively elects to include them.

Pay and Working Conditions

Whether or not workers are on probation periods, they’re entitled to the same salary and working conditions as other employees. They’re protected by minimum wage laws and must be paid at least the federal minimum of $7.25 per houror their state minimum wage if that is higher. Non-exempt employees are also entitled to overtime pay for hours worked over 40 in a workweek, which must be paid at not less than 1.5 times their regular rate (“time-and-a-half”) according to the federal Fair Labor Standards Act (FLSA).

Additionally, workers on probation must be provided with safe and healthy workplaces according to the Occupational Safety and Health Act of 1970 (OSH Act).

Termination and Notice

Because all states in the USA, except for Montana, follow at-will employment standards, workers can be terminated without notice or justification at any time, whether during probation periods or otherwise, provided the reason is not unlawful. Likewise, employees can resign from their jobs freely. However, individual contracts or collective bargaining agreements may stipulate different conditions and require good reasons for termination and/or notice periods for terminations.

Under the Family and Medical Leave Act (FMLA), eligible employees of any gender are entitled to up to 12 workweeks of unpaid, job-protected leave in a 12-month period for reasons including the birth or adoption of a child. To be eligible, an employee must have worked for a covered employer for at least 12 months, with at least 1,250 hours of service in the 12 months before leave, at a location with at least 50 employees within 75 miles. Most employees on probation will therefore not yet qualify. The Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964, states that employers with 15 or more employees cannot dismiss workers because of pregnancy, whether during probation periods or otherwise.

Vacation / Holidays

Annual leave is not mandated federally in the US; the FLSA does not require payment for time not worked, such as vacations or holidays, though it’s common practice for employers to grant vacation days to enhance employee compensation. It’s up to the employer whether to grant leave during probation periods in the USA.

Benefits of Probation Periods in the United States

While not required by law, probation periods in the USA can be highly useful for both employers and employees for the following reasons:

  • For Employees

Employees receive extra care and attention while they learn their new roles.

They’re given an opportunity to prove their worth to their employers.

  • For Employers

Employers can find out if new hires actually possess the skills they claim to have.

They enjoy a period of incorporating new employees into their company cultures.

They can look for areas that new employees need to develop to become fully productive team members.

Frequently Asked Questions

Yes, and they normally last around three months. While they’re not mandatory and not different from normal at-will employment, these periods are useful for encouraging employees to learn their new jobs and adjust to their new companies quickly.

No, they’re free to terminate workers at any time and for any reason during probation.