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Probation Meant as an Opportunity to Demonstrate Skills

By Robert Smithson

I sometimes refer to the probation period as the Rodney Dangerfield of employment law (for those of you not old enough to know, that means it gets no respect).  But few legal mechanisms can be more effective in getting employers out of employment relationships which seemingly have no future.

I’ve written previously that the probation period can be viewed as one long audition for a job, revealing an individual’s true skills, attitude, and ability to fit in.  In my view, there simply is no substitute for viewing an individual on the job in real work situations.

But probation periods don’t just happen by magic.  The employer must take certain steps to ensure it has gained the benefit of a probation period.

The employer and employee should agree, in writing, prior to the commencement of the employment, on the terms of a binding probationary period.  There are numerous preferred components of an enforceable probation clause.

First, the parties should define the stand...

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