Do probationary employees have rights during their period of probation?

If you still are in your probationary period at the time your employment is terminated, the law in Ohio is not very helpful to your situation.

In Ohio, employees serving a probationary period largely cannot expect to enjoy the same sorts of rights as employees who have completed their probationary periods. This is especially so for individuals who are covered by union contracts. The rights under a union contract for employees serving during a probationary period are rather limited. You still should consult with the union representatives to determine whether you would have grounds for filing a grievance against your former employer.

For employees not covered by union contracts, those serving probationary periods under the law of the State of Ohio largely are treated as if they were at-will employees, meaning that their services can be terminated and the terms and conditions of employment can be modified at any time, with or without cause or notice.

Probationary employees are not without any rights, regardless of whether they are covered by union contracts or not. If you are a probationary employee, you would have recourse to pursue a claim for employment discrimination:

  • On the basis of race, color, creed, national origin, sex, religion, handicapped status, or age

  • Because you “blew the whistle” on a violation of federal or state law amounting to a felony or affecting public health and safety

  • Because you are the victim of retaliation for having reported occupational safety and health issues to appropriate authorities

  • Because you filed or assisted someone else in filing a claim for worker’s compensation, unemployment compensation, employment discrimination, or any claimed entitlement under an employee benefit plan

  • Because your privacy rights have been violated

  • For any reason that would support a claim of “wrongful discharge ” for the employer having fired you in a way that also would constitute a violation of public policy in the State of Ohio as framed by federal or state statutes or regulations

What rights do I have as an employee covered by a union contract?

A union contract offers significant benefits for employees covered by its terms. Through the process of collective bargaining, a union generally can negotiate terms for its members that would be more favorable than those the individual members likely would be able to negotiate for themselves in one-on-one sessions with the employer.

When a dispute arises in a work setting governed by a union contract, the best route for an employee to take would be to contact the union representative or steward. Generally, the prospects for success in resolving employment-related disputes are better when claims are made in the context of a grievance filed under a union contract than by filing a lawsuit.

Federal law prohibits an employee from resorting to court to resolve a dispute that could have been brought as a grievance under a union contract unless:

  1. The employee first exhausts every step in the dispute resolution process as outlined in the union contract

  2. The employer and the union have acted fraudulently, in bad faith, or in such a manner as to discriminate against the employee who could not get a resolution of his or her grievance through the union contract’s dispute resolution process

So, an employee should always take advantage of the grievance process outlined in his or her union contract before initiating any other action seeking redress.

Many union members call my office because they are dissatisfied with the level of attention they receive from the union or have lost confidence in the ability of the union representative or steward to look after their interests competently or effectively. An experienced employee rights attorney can help in the grievance process.

Union officials sometimes welcome such assistance. Other times, union officials rely on the lawyer chosen by the employee simply because the union lacks the resources to hire an attorney on its own. In rare circumstances, the union has so badly botched the grievance process that the member harmed by such misconduct can sue his or her union for breach of its duty of fair representation.

Contact us if you are in either of these situations and wish to explore your grievance in greater detail to determine whether a more comprehensive investigation should be launched or whether more could be done. This could be either working with your union or not. To improve your chances of success, call our office to schedule an appointment.

What does “at-will” employment mean to me?

Unless you have your own written employment contract, you work under a union contract of some sort, or you are protected by civil service laws, you are employed “at-will” in Ohio. This means you can be fired and the terms and conditions of your employment can be modified with or without cause, with or without notice, at any time. Most times, this principle works to the employer’s advantage, not the employee’s.

The policy “advanced” by the “at-will” doctrine is that our free enterprise system of economics thrives best when the marketplace for talent in the workforce remains dynamic or fluid. Supposedly, by allowing both employers and employees to terminate the employment relationship at any time, with or without notice, and without having to have any justification whatsoever, both employers and employees have more flexibility and more options when seeking to fill job openings.

Since I formed my law firm in 1989 dedicated to the representation of the individual in the employment setting, Ohio’s laws have become more and more business-friendly and less and less family-friendly. This makes it all the more important for you to secure the services of an experienced employment attorney to protect your most valuable assets—your career and your income—in good economic times and especially in bad economic times.

Would having an employment contract help avoid “at-will” employment doctrine?

Individuals protected under union contracts and most government workers protected by civil service laws are not affected by the “at-will” employment doctrine.

For most employees in the private sector, the best way around the “at-will” employment doctrine is to negotiate your own individual employment contract with your employer. Executives and senior-level managers generally find it easier to persuade their employers to abandon the built-in employer-friendly benefits of “at-will” employment relationships. But “key” employees in an organization generally can persuade their employers to enter into individual employment contracts to protect their specific interests.

I have years of experience with negotiating and drafting employment contracts for both employers and employees. I take a comprehensive approach to the employment contract process. 

Professional athletes and performing artists hire agents to negotiate their deals for them. Those agents either are lawyers themselves or they hire attorneys to attend to all the details. Why shouldn’t other employees have the same opportunities to protect themselves and those they love with individual employment contracts?

If an employer agrees to offer an individual employment agreement, the employee must be careful about scrutinizing the proposed terms and conditions. The employer often will draft an 8-page contract that looks good on its face until the employee or his or her counsel realizes that the contract merely re-confirms an “at-will” employment relationship in the guise of an individual employment contract. Other draft agreements leave far too much to the employer’s discretion.

An experienced employment attorney can help you to identify all of the key employment contract issues while negotiating and drafting an agreement that will let you truly realize the benefit of your bargain and protect what you earn against unfair employer conduct in the future or the uncertainties that come with having to weather harsher economic times as the employment relationship continues.

Are there other ways around the “at-will” employment doctrine without an employment contract?

Under Ohio law, your only recourse would be to pursue a claim for employment discrimination as employer’s actions would constitute violations of public policy in the State of Ohio as articulated by federal or state statutes or regulations.