Most Virgin Islands employees are subject to a 90 day probationary period of employment pursuant to the “Virgin Islands Wrongful Discharge Act”. Notwithstanding this provision of VI labor law, employers may establish probationary periods as a means of evaluating recently hired employees, along with any workers who may not be performing well on the job. While these periods may be useful management tools, there are also some potential legal pitfalls if they are not implemented correctly.
The idea of a probationary period is that a company modifies the typical employment rules for someone who is either new to a position or who is struggling to keep up with his or her performance expectations. In a probationary period, the employee would meet with their supervisor on a regular basis to review progress and go over any concerns or questions either side has. The employer would also provide training and feedback. If the employee does not improve during this period, they would likely be fired.
These arrangements may cause labor law challenges if they compromise what’s known as at-will employment. In an at-will structure, an employer may fire a worker at any time for any legal reason. This is the case with the 90 day statutory probationary period under the Virgin Islands Wrongful Discharge Act. However, employers might lose this right if they make certain guarantees that are not consistent with this type of employment arrangement.
To that end, if an employer implies there will be a probationary period outside the statutory 90 day probationary period, it is assumed that the employee will have that entire stretch of time to either learn a new position or make necessary improvements. Workers will also reasonably expect to stay employed if they successfully complete the probationary period.
How to implement probationary policies effectively
If your company does decide to move forward with a probationary period for workers, here are a few tips to help you ensure it’s done the right way:
- Clearly state your expectations: Make sure your employees know exactly how long this probationary status will last, what must change during that time, how often they must meet with you and any milestones they must hit.
- Give constant feedback: Regularly review employees’ performance with them. If they are having difficulties, make sure to provide guidance for how they can improve.
- Get help when needed: Assign the employee a mentor, such as someone on staff who has a lot of experience. Be sure to provide the probationary employee with all of the additional resources he or she needs to be successful.
- Track and document: Make sure you are keeping close tabs on everything that’s happening, and that you are documenting it accordingly. You must be able to provide evidence that you gave the employee a fair shake, so you should record the employee’s performance, your efforts taken to coach and train them, etc. This could protect you if the worker decides to take legal action, claiming that you violated his or her rights.
To learn more about how can implement an effective probationary period policy that protects your company’s best interests, consult an employment law attorney who has familiarity with the specific labor laws and regulations of the U.S. Virgin Islands.
Attorney Ravinder S. Nagi is Assistant Managing Attorney and Chair of the Labor & Employment Practice Group at BoltNagi, a widely respected and established employment and labor law firm serving businesses and organizations throughout the U.S. Virgin Islands.