A probationary period doesn’t give a California private employer any legal right it didn’t already have. Most private employment is already at will under Labor Code section 2922, so the employer could end the job during probation or after it. The risk runs the other way: telling employees that probation ends with “permanent” status can support an argument that the employer now needs good cause to fire. And discrimination and retaliation laws apply on day one, probation or not.
Does probation change at-will status?
Not on its own terms. Labor Code section 2922 says “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” An employer that has at-will employment doesn’t need a probationary period to fire a new hire.
What a probationary period can do is create expectations. If the handbook says employees become “permanent” or “regular” after 90 days, and nothing says at-will status continues, an employee fired later may argue that the employer implicitly promised to fire only for cause after probation.
How do courts decide whether there’s an implied promise?
By looking at everything. In Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, the California Supreme Court said the nature of an implied contract “must be determined from the ‘totality of the circumstances.’” The court added: “Every case thus turns on its own facts.”
That’s why wording matters. A clear, signed at-will acknowledgment that also says completing the introductory period doesn’t change at-will status is the employer’s best evidence. Personnel policies, supervisor promises, and practice all go into the mix.
| Wording | Risk | Better approach |
|---|---|---|
| Probationary period, then permanent status | Supports an implied good-cause claim | Introductory period, with at-will status continuing |
| No written at-will statement | Leaves the question to the facts | Signed at-will acknowledgment |
| Fired for any reason during probation | Implies a limit afterward | State at-will applies throughout |
| Automatic extension without notice | Confusing record | Document any extension in writing |
Do discrimination laws apply during probation?
Yes. A firing during probation can still be challenged as discriminatory or retaliatory. Under Government Code section 12940(a), it’s unlawful for an employer, “because of” protected characteristics, to “discharge the person from employment.” The statute has no waiting period. A new hire fired a week after disclosing a pregnancy or a disability, or after complaining about harassment, has the same claims as a long-tenured employee.
Probation is useful as documentation. An employer that sets clear expectations, records performance concerns during the period, and ends the job for those documented reasons is in a stronger position than one that acts on an unrecorded impression.
What about benefits and leave during probation?
Some rights depend on tenure, but not on what the employer calls it. Eligibility for certain statutory leaves depends on length of service and hours worked, measured by the statute’s own test. Paid sick leave and wage and hour rules apply from the start. An employer can set waiting periods for some company benefits, but should apply them as written and consistently.
What should an employer do when a new hire’s termination is challenged?
Show the expectations and the reasons.
- Preserve the offer letter, at-will acknowledgment, handbook version, training records, and any written performance notes from the introductory period.
- Calendar the response deadline on any demand, CRD complaint, or summons, and notify the EPLI carrier.
- Identify who decided to end the job and what they knew about any protected activity or characteristic.
- Pull the handbook’s probation language and any supervisor communications that promised permanent status.
- Talk to counsel before responding to the employee or their lawyer.
These cases are part of defending California employers against early-tenure termination claims.
Probationary period questions employers ask
Should a California employer use a probationary period at all?
Many don’t need one. If the employer wants a structured review point, calling it an introductory or evaluation period and stating that at-will status continues afterward gets the management benefit without the contract risk. Public employers and unionized workplaces are different: civil service rules or a collective bargaining agreement may give probation real legal effect.
Can an employer extend the probationary period?
It can, if its policy allows it, but extensions add little for an at-will employer and can create confusion. If the employer does extend, it should do so in writing, before the period ends, with the reason. Inconsistent extensions across employees can become evidence in a discrimination case.
Does firing during probation affect final pay?
No. Final pay rules are the same for every employee. A discharged employee’s wages are due immediately, whether the job lasted a day or a decade. Rules for timing final pay are covered in the firm’s post on California waiting time penalties.
If a recently hired employee has challenged a termination
If an employee fired during or shortly after an introductory period has sent a demand or filed a claim, the handbook language and the documented reasons for the decision usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving wrongful termination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 2922 and Government Code section 12940. The implied-contract case is Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.