Probationary periods — typically 30, 60, or 90 days — are common in small business hiring. The assumption behind them is often that the employer has more freedom to terminate during the probationary period than after it. In most cases, that assumption is incorrect — and relying on it creates a false sense of legal protection.
In 49 states (all except Montana), employment is at-will by default. This means an employer can terminate an employee at any time, for any reason that is not illegal — regardless of tenure. At-will employment applies on Day 1 just as much as it applies on Day 365. The probationary period does not change this.
What probationary periods can do is create a psychological framework for both the employer and employee about the evaluation period. But if anything, poorly worded probationary language can inadvertently imply that employees who "pass" the probationary period have greater job security — which can undermine at-will status in a dispute.
The same things that protect you at any other point: clear documentation of expectations, consistent performance feedback, documentation of any performance concerns, and decisions that are free of discrimination or retaliation. These protections apply on Day 5 and Day 500.
Frame it as an orientation or onboarding period rather than as a legal protection mechanism. Make it about the structure of the new hire's ramp — check-ins, goal-setting, feedback cycles — rather than about employment status. And have an employment attorney review any language related to it in your handbook to ensure you are not inadvertently creating a just-cause termination obligation after the period ends.
Probationary periods are useful as onboarding structures. They are not legal shields. Your real protection is documentation, consistency, and decisions that would hold up to scrutiny at any point in the employment relationship.
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