Wrongful Termination During a Probationary Period: Why “Probation” Does Not Mean “No Rights”
An employee is fired during their probationary period and assumes they have no legal recourse. After all, probation exists so the employer can evaluate the new hire, and the termination feels like it was within the employer’s discretion. In many cases, that assumption is wrong.
The misconception is widespread, and employers benefit from it. An employee is terminated during their first ninety days — or sixty, or six months, or whatever period the employer calls “probationary” — and believes that because the probation had not ended, the employer had an unrestricted right to let them go. They assume the law does not apply to them yet. They do not consult with an attorney. They move on.
In many cases, they leave a viable claim behind.
What “probationary period” actually means
A probationary period is an employer’s internal designation. It is a policy decision, not a legal status. The employer defines a period — typically the first ninety days of employment — during which it evaluates the new hire’s performance, fit, and suitability for the role. At the end of the period, the employee is “confirmed” or “made permanent.”
What this designation does not do is create a separate legal category with reduced rights. California law does not recognize a “probationary employee” as a distinct classification with fewer protections than a “regular employee.” From the first day of employment — before probation, during probation, and after probation — the employee is protected by the full scope of California employment law.
What the law still prohibits
Every protection that applies to a tenured employee applies equally to an employee in their first week.
Discrimination. An employer may not terminate a probationary employee because of their race, sex, age, disability, sexual orientation, gender identity, religion, national origin, pregnancy, or any other characteristic protected by FEHA. An employer that hires a qualified applicant, discovers during the probationary period that the employee has a disability or is pregnant, and terminates the employee has violated the law — regardless of how many days the employee has been on the job.
Harassment. A probationary employee who is subjected to severe or pervasive harassment based on a protected characteristic has the same claim as an employee of twenty years. The employer’s obligation to prevent and correct harassment begins on day one.
Retaliation. A probationary employee who reports harassment, files a safety complaint, requests a disability accommodation, or engages in any other protected activity is protected against retaliation from the first day. An employer that fires a new hire for reporting a supervisor’s discriminatory comments has retaliated, and the employee’s probationary status is irrelevant.
Wage and hour protections. Probationary employees are entitled to minimum wage, overtime, meal and rest breaks, accurate wage statements, and timely payment of wages. None of these rights are suspended during probation.
Whistleblower protections. An employee who reports illegal activity during their first week of employment is protected by Labor Code section 1102.5. The length of the employee’s tenure does not affect the statute’s applicability.
What probation does affect
Probationary periods can have limited legal consequences in specific, narrow contexts.
CFRA eligibility. The California Family Rights Act requires twelve months of employment and 1,250 hours of work before an employee is eligible for job-protected leave. An employee in their first months of employment may not yet have met these thresholds. This means the specific leave entitlement under CFRA may not be available, though other protections — such as disability accommodation or pregnancy disability leave — may apply regardless of tenure.
Unemployment benefits. An employee terminated during a very short probationary period may face practical difficulties in establishing sufficient earnings to qualify for unemployment benefits, though the right to apply is not affected.
Implied contract claims. A probationary period can, paradoxically, create stronger contractual protections than its absence. If the employer’s handbook or offer letter states that probationary employees may be terminated “at will” during probation but that permanent employees may be terminated only for “cause,” the employer may have created an implied contractual obligation not to fire permanent employees without good reason. This was addressed in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, where the court examined the interaction between probationary policies and implied contract terms.
Why the misconception persists
Employers benefit from the belief that probationary employees have no rights, and some actively cultivate it. A handbook that states “employment during the probationary period is at the sole discretion of the company” creates the impression that the at-will doctrine is somehow broader during probation than after it. It is not. At-will employment means the same thing during probation as it does afterward: the employer may terminate for any reason that is not specifically prohibited by law.
The prohibited reasons — discrimination, retaliation, harassment, violation of public policy — are prohibited on day one. No employer designation, no probationary label, and no handbook provision can suspend them.
What this means in practice
An employee terminated during probation should evaluate the circumstances exactly as they would if the termination had occurred after ten years.
Was the termination connected to a protected characteristic? Did it follow a disclosure — of a disability, a pregnancy, a religious practice, a medical condition? Did it follow a complaint — about harassment, about safety, about wages? Was the stated reason consistent with how the employee was treated before the termination, or did the employer’s assessment shift suddenly?
If the answer to any of these questions suggests that the real reason was unlawful, the employee’s probationary status does not change the analysis. The claim is the same, the remedies are the same, and the statute of limitations is the same.
If you were fired during a probationary period and believe the real reason was your race, age, disability, pregnancy, or some other protected characteristic — or that you were retaliated against for exercising a legal right — the probationary label does not diminish your claim. Your rights under California law begin on day one.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.