Addressing Performance Concerns with Probationary Employees

It may be necessary to counsel, or even discipline, employees during a probationary period. The question then becomes, can or should counseling or discipline during a probationary period be a consideration when rendering a determination on tenure for an instructional employee, or for permanent appointment of a non-instructional employee?

The answer is yes; neither prior counseling nor prior discipline insulates a performance concern from a later tenure decision. However, there must be careful attention to detail. Professional missteps or performance concerns during the probationary period may result in a decision to terminate the probationary period prior to its expiration, consistent with applicable laws and rules. There are those situations, however, when a performance concern warrants counseling, or even discipline, during the probationary period, but the employer does not wish to terminate the probationary appointment – yet. It may be believed that, with proper direction and support, the employee can be successful beyond the probationary term. At the same time, although a performance concern may not warrant termination during the probationary period, the concern may want to be preserved as a consideration in the future determination on tenure or permanent appointment.

Absent careful wording in a counseling memorandum or while imposing discipline, the counseling or discipline imposed may give the impression that a school district considers the matter to have been dealt with, such that it would not have any impact on an individual’s employment status going forward. However, assuming that the school district has addressed issues appropriately initially, any matters of concern that arise during an employee’s probational period may be considered when evaluating whether the employee will be retained beyond the probationary term. If there is any potential that the same event may ultimately serve as a basis for terminating the probationary appointment and/or not recommending for tenure or permanent appointment, careful wording in a counseling memorandum or disciplinary action is critical. The counseling memorandum or written discipline must make clear to the employee that the actual event, not just future events of similar ilk, may be considered by the employer when rendering a determination on tenure or permanent appointment. Stating that future events of the same type may result in remedial action implies that it is only a future event of the same nature that will warrant such consideration. It must be clear to the employee that the very same incident for which counseling or discipline was imposed can serve as a reason for terminating the probationary appointment, even if there are no subsequent matters of concern involving the employee. Even with this clear notice, if time has passed with no future incidents of the same nature, whether it is appropriate to terminate the employee based on that prior event requires thoughtful analysis.

Employers are cautioned to consider the severity of the concern when evaluating if counseling or discipline during the probationary period is wise, or whether the concern is of sufficient magnitude to begin the process to terminate a probationary appointment immediately.