If an employee is let go within their "probation" period (90 days for our company), for whatever reason, can they still collect unemployment? My supervisor thinks that we can let them go for any reason in that period and they can't collect unemployment, thus a lot of documentation has not been done with problem employees in this time frame. I am not so sure about this.

I am not aware, and in fact given this is CA would be shocked, provision in CA UI law that states employees discharged during their probationary periods are exempt from unemployment. Some states, but very few, have provisions that exempt those employers from liability. I do not recall CA was one of them. I will review the law and regulations.

Of course, an employer can always contest an award of benefits, but would have to demonstrate willful and deliberate misconduct, which more often than not necessitates proper and accurate documentation.

That was my thinking. But, I am new to CA and pretty new in HR. I'm just one of those accountants thrown into assuming HR duties, as happens so much in small companies. Thank you.

Given that there are no state regulations on what a "probationary" period (length) is, I can not see how an employee would be disallowed just based on his "probationary" status.

I've managed the payroll operations and represented California employers in UI hearings, and I've never encountered this as an issue in CA. IOW, I've never had unemployment benefits denied because the employee was in a "probationary" (I hate that word) period. Now, having said that, that doesn't mean the last employer would be the "chargeable" employer; in most cases, they wouldn't be, or at least not totally.

That must be why my supervisor thinks this is the case. He says that he has always just told them they were in their 90-day introductory period and hasn't had to pay. Maybe we just weren't "chargeable" and that is why he thinks this. Thank you very much for the responses.

Exactly. The issue is which employer is "chargeable" since the employer doesn't literally "pay" UI benefits; just the taxes that fund it, based (in California) on the employer's experience rating.

And my review of the statutes and EDD website finds no reference to a recognized probationary period that would either exempt such employees from eligibility or exempt the applicable employers from liability. Therefore, it most likely does not exist.

The supervisor is probably referring to the recognized base period, see below, although it is incorrect to state that the employer will never be liable. However, if terminated in the first ninety (90) days it is certainly very unlikely the employer will be terminated.


Base period:

1275. Unemployment compensation benefit award computations shall be
based on wages paid in the base period. "Base period" means: for
benefit years beginning in October, November, or December, the four
calendar quarters ended in the next preceding month of June; for
benefit years beginning in January, February, or March, the four
calendar quarters ended in the next preceding month of September; for
benefit years beginning in April, May, or June, the four calendar
quarters ended in the next preceding month of December; for benefit
years beginning in July, August, or September, the four calendar
quarters ended with the next preceding month of March. Wages used in
the determination of benefits payable to an individual during any
benefit year may not be used in determining that individual's
benefits in any subsequent benefit year.

A little off topic, but I wanted to give a warning regarding "probation" periods. If you tell an employee that they have a probation period of 90 days, it implies that there is a different relationship after that period. If you wish to maintain an "at will" relationship with your employees you may want to stay away from calling it a probation period.

We don't call it a "probation" period. I just used that terminology to try to make it clear what I meant. There is an "introductory" period before they receive full benefits. Thanks for the warning.

I would agree with CAemployerED ... it may save potential legal headaches down the road.

CAemployerED, I will continue this somewhat off topic theme for my own edification and because it is tangentially related to an issue I am currently working on ... are you aware of any CA court decisions where this was ruled upon or at the very least discussed?

Thanks in advance.

I do not know of any court decisions related to this topic. My opinion is that it is simply unnecessary to differentiate between the initial employment period and the long term (unless you have contract employees). Any policy verbal or written discussing employment relationships other than explaining the "at-will" gives credence to a possible wrongful termination. I have been involved in one wrongful termination where it was found there was breach of contract by the employer based on a "verbal" contract.

Thanks. As previously stated, I most definitely agree with your opinion for the very reason you mentioned ... potential litigation.

Given the generally liberal nature of CA courts, I would be unsurprised if there were any decisions on on point.

Perhaps, others may be aware of such decisions in any jurisdictions ...