Employer guideRead at source September 28, 2026
New Hire Probationary Period: How Long, What It Changes, and How to Run It
A new hire probationary period is an initial stretch of employment, which we recommend setting at 30 to 90 days for hourly roles, during which you and the new employee find out whether the job works, with planned check-ins and a clear decision at the end. Outside a few special cases it changes almost nothing legally: an at-will employee is at will on day 1 and day 91, minimum wage and overtime apply from the first hour, and unemployment eligibility is set by state law, not by your label. The rules that do touch it are narrow: health plan waiting periods may not exceed 90 days, and in Montana the probationary period decides when a discharge starts to need good cause.
Why companies place new hires on probation
The honest reasons are practical, not legal. An interview, however structured, is a prediction; the first weeks on the job are the evidence. A probationary period gives that evidence a structure: a date by which both sides decide, a few scheduled conversations, and a shared understanding that the start of a job is when fit gets tested. For the employer it forces a decision that would otherwise drift. For the new hire, done well, it means feedback arrives in week two rather than month six.
The reasons that are usually given but do not hold up are the legal ones: that probation lets you fire without cause (at-will employment already does, in most states), that it avoids unemployment claims (it does not, as below), or that probationary employees are exempt from some rules (they are not). Treat probation as a management tool and it works. Treat it as legal protection and it can backfire.
How long a probationary period should be for hourly roles
No federal law sets a length, and the Texas Workforce Commission puts it plainly: "There is no Texas or federal law that either requires or prohibits employers from treating employees as probationary, initial, trial, introductory, or provisional employees." So the length is a management choice. Ours, from running hiring for frontline employers, is that it should be as long as it takes to see the person do the whole job, and no longer:
| Role type | Suggested length | Why |
|---|---|---|
| High-volume entry roles: warehouse, food service, retail, housekeeping | 30 to 60 days | Most of what you need to know (attendance, pace, attitude) shows up in the first few weeks. A longer period just delays the decision. |
| Hourly roles with real training: CNA, CDL driver, production, trades helper | 60 to 90 days | Allow for the training period plus a few weeks of doing the job unsupervised. |
| Skilled or lead hourly roles: technicians, licensed trades, shift leads | 90 days | The work takes longer to judge, and some tasks only come up monthly. |
| Any role in Montana | Set it in writing before day one | If you do not, the law sets 12 months, extendable to 18 (MCA 39-2-910). |
Ninety days is the familiar number, and it lines up with the maximum health plan waiting period, but it does not suit every role. For a dishwasher, ninety days is two months of indecision. Whatever you pick, put it in the offer letter and apply it to everyone in the same role.
What probation does and does not change legally
| Rule | Does probation change it? | What the source says |
|---|---|---|
| At-will employment | No | Outside Montana and any contract or union agreement, an at-will employee can be let go for any lawful reason before and after probation. The TWC advises saying so in writing. |
| Minimum wage and overtime | No | The FLSA sets minimum wage, overtime, recordkeeping and youth employment standards for covered nonexempt workers. It has no probationary exception. |
| Discrimination and retaliation | No | The EEOC's position is that "the law forbids discrimination in every aspect of employment", including firing. A probationary discharge is covered like any other. |
| Unemployment insurance | No | Eligibility is "determined by the State law", based on wages in a base period and a separation through no fault of the worker (DOL fact sheet). The TWC: probationary periods "by themselves, have no significance in unemployment claims." |
| Health coverage waiting period | Limited | A group health plan may not apply a waiting period over 90 days (29 CFR 2590.715-2708), though it may add a bona fide orientation period of up to one month first. |
| Employer mandate (50+ full-time equivalents) | Limited | For a new employee reasonably expected to be full time, no section 4980H(a) penalty applies for the first three full calendar months if the employee is otherwise eligible for coverage under the plan and is offered it by the first day of the fourth full calendar month (26 CFR 54.4980H-3(d)(2)(iii)). |
| Good cause for discharge in Montana | Yes | Once probation ends, a discharge without good cause is wrongful (MCA 39-2-904). |
Two notes on unemployment. First, whether a short-tenure worker can collect depends on your state's base-period wage test and the reason for separation, not on whether they were probationary. Second, the TWC does point out one indirect effect in Texas: a very short job can mean the employer is not a base-period employer at all, which reduces chargeback exposure. That is a result of the short tenure, not of the probation label, and the rules differ by state.
On benefits, the waiting period rule applies to the health plan's eligibility terms. You can make health coverage start after a probationary period only if the total wait stays within the limit. Other benefits, such as paid time off accrual or a 401(k) match, follow their own plan rules and your state's leave laws; check each before you tie it to probation.
How probation language can undermine at-will status
The risk is in the word. The Texas Workforce Commission warns that employees often believe that once they have "passed" the probationary period, their jobs are "safe" or even guaranteed, and they cannot be fired except for cause. Such employees, it notes, if fired after completing the initial period, often think they have a good case for a lawsuit. It reports that most employment law attorneys in Texas now advise against calling the period a probationary period at all, and suggest "initial", "trial", "introductory" or "provisional" instead.
Three wording habits reduce the risk wherever you operate:
- Call it an introductory period in the offer letter and handbook.
- Say what completing it does not do. The TWC's recommended point is that completion of the period does not change the employment-at-will relationship. Put a sentence to that effect in writing.
- Do not call people "permanent" afterward. "Regular" or "benefits-eligible" says what you mean without implying a promise.
Handbook rules vary by state; employee handbook requirements by state covers what each requires in writing, and the job offer letter template has space for the introductory-period sentence.
Montana: where the probationary period is written into the law
Montana's Wrongful Discharge from Employment Act is the clearest example of a law that gives probation real legal effect. During probation, "the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason" (MCA 39-2-904(2)). After it, a discharge is wrongful if it was not for good cause, among other grounds. Good cause means reasonable job-related grounds based on unsatisfactory performance, disruption of the employer's operation, material or repeated violation of the employer's written policies, or other legitimate business reasons (MCA 39-2-903(5)).
The length matters more there than anywhere else. If the employer does not set a specific probationary period, or state that there is none, before or when the employee starts, the law sets one of 12 months. The employer may extend it before it expires, but not beyond 18 months in total, and leaves of absence during probation do not count toward it unless the employer chooses to include them (MCA 39-2-910). The rest of the state's rules are on Montana labor laws.
Union workplaces: the contract sets the probation
If your employees are covered by a collective bargaining agreement, its probation clause controls: the length, whether it can be extended, when seniority starts, and whether a probationary employee can grieve a discharge. If your agreement limits a probationary employee's right to grieve a discharge, the end date matters even more. Read the clause before you set a policy for a bargaining unit, and do not assume your non-union handbook language applies to them.
Running the 30/60/90 check-ins
This is our practice with the employers we recruit for, not a legal requirement. The point of a probationary period is the conversations, and they only happen if they are on the calendar before day one.
- Day 1. Say what the introductory period is, how long it lasts, when the check-ins are and what good looks like at each. Name one person the new hire goes to with questions.
- End of week 1. Ten minutes: is the job what they expected from the ad and the interview? A mismatch found here can often be fixed. Found at day 60, it usually ends in a quit.
- Day 30. Attendance, basic tasks, how they are getting on with the crew. Give one thing to keep doing and one to change, in writing.
- Day 60. Progress on the day-30 item. If there is a serious problem, say so plainly now and say what has to change by day 90.
- Day 90, or the end of the period. A clear decision, communicated in a meeting and in writing. For a good hire it should also be a conversation about pay, schedule or the next step, because the end of the introductory period is a natural retention moment.
Why the first weeks matter so much, and the third-party turnover data behind it, is on first 90 days turnover. The setup before day one is on new hire orientation and new hire training, and stay interview questions works well at the day-60 conversation.
What to do when a new hire is not working out
- Decide at the check-in, not at the deadline. If day 30 and day 60 were honest, day 90 is not a surprise to anyone.
- Document what you told them and when. Short written notes from each check-in are enough. Even in an at-will state they are your record that the decision was about performance.
- Be consistent. Apply the same standard to everyone in the same role. Inconsistency is what turns an ordinary probationary discharge into a discrimination or retaliation complaint.
- Extend only with a reason and in writing. An extension should name what has to change and a new date. In Montana, extend before the period expires and within the 18-month cap.
- End it cleanly. Hold a short meeting, state the decision, and pay final wages on your state's deadline; final paycheck laws by state has each one.
- Decide about rehire now. Someone who was a poor fit for one role may be right for another. Record it under your rehire policy.
And look upstream. If new hires in one role keep failing probation, the problem is usually the ad or the interview, not the new hires: the job they applied for was not the job they got.
Frequently asked questions
What is an employee probation period?
It is an initial period of employment, which we recommend setting at 30 to 90 days for hourly roles, during which the employer evaluates whether a new hire fits the job, usually with scheduled check-ins and a decision at the end. No federal law requires or defines one. Many employers now call it an introductory period to avoid implying that employees who complete it can only be fired for cause.
Why do companies commonly place new hires on probation?
To create a structured point at which both sides decide whether the job is working, with feedback early enough to act on. It is a management tool rather than a legal one: in most states an at-will employee can be let go for any lawful reason whether or not they are on probation, and the label does not change wage, anti-discrimination or unemployment rules.
Is a 90-day probation period required by law?
No. The Texas Workforce Commission notes there is no Texas or federal law that either requires or prohibits treating employees as probationary. Ninety days is a common convention and matches the maximum waiting period a group health plan may apply under 29 CFR 2590.715-2708. Montana is different: if you set no period there, the law sets 12 months.
Can you fire an employee on probation without a reason?
In an at-will state, generally yes, but the same is true after probation, and discrimination and retaliation laws apply either way. A union contract or an employment contract can change this. In Montana, employment during probation can be ended by either side for any reason or none, while after probation a discharge needs good cause under MCA 39-2-904.
Can an employee on probation collect unemployment?
Possibly. The Department of Labor says eligibility is determined by state law, based on wages earned in a base period and a separation through no fault of the worker. The Texas Workforce Commission says probationary periods by themselves have no significance in unemployment claims. A very short job may leave too few base-period wages, but that is about tenure, not the label.
Can I make health benefits start after the probationary period?
Only within federal limits. A group health plan may not apply a waiting period longer than 90 days, though a bona fide orientation period of up to one month may come first. Employers subject to the ACA employer mandate have until the first day of the fourth full calendar month to offer coverage to a new full-time employee who is otherwise eligible under the plan without a section 4980H(a) penalty for those months.
Can you extend a probationary period?
Usually yes, as a matter of policy, if you do it in writing before the period ends and say what has to change. Check any union contract first. In Montana the law allows an extension only before the period expires, and the original period plus extensions may not exceed 18 months in total under MCA 39-2-910.
Is an introductory period the same as a probationary period?
In practice, yes: it is the same initial evaluation period under a different name, and the name is chosen on purpose. The Texas Workforce Commission says no Texas or federal law requires or prohibits treating employees as probationary, initial, trial, introductory or provisional, and reports that many employment lawyers now advise against the word probationary because employees may read completing it as a promise that they can only be fired for cause. Whatever you call it, say in writing that finishing it does not change at-will employment. Montana is the exception, where the statutory probationary period has legal effect.
Fewer failed probations start with a better-matched applicant.
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