Labor & Employment Law

Extension of the probationary period

By Harvey Randall, Esq.

Extension of the probationary period
Smith v NYC Dept. of Correction, App. Div., First Dept., 292 A.D.2d 198

In the Smith case the Appellate Division considered a number of aspects of probation upon appointment and the extension of an employee's probationary period. This provides an opportunity to review the decision and to explore some related aspects of probationary status.

Kenneth Smith sued the New York City Department of Corrections following his termi­nation from his job. He asked Supreme Court to annul the Department's decision dismiss­ing him from his position without notice and hearing. Supreme Court dismissed his peti­tion and the Appellate Division affirmed the lower court's ruling.

The Appellate Division said that Smith was a probationary employee at the time of his termination. Accordingly, said the court, he was not entitled to a pretermination hearing as a prerequisite to his dismissal.

One of the factors considered by the court concerned the fact that Smith's probationary period had been extended "by the number of days that he was absent from duty." It was a result of this extension that Smith was still in probationary status at the time of his separa­tion. He argued that his termination should be annulled because he was not advised that his probationary period had been extended because of his absences.

New York City Personnel Rules Section 5.2.8(b) provides that for the purposes of satisfying probationary service requirements "the probationer does not perform the duties of the position in situations involving limited duty status or if absent on annual leave, sick leave or for other reasons. Accordingly, the employee's probationary period is to be extended one day for each day of such absence."

As to extensions of the probationary period as a result of "light duty assignment," in Boyle v Koch, 68 NY2d 601, the Court of Appeals ruled that the employer was not re­quired to count the employee's "light duty service" for probationary purposes. An em­ployee assigned to "light duty" may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."

The Appellate Division disagreed with Smith's argument that he should have been given notice that his probationary period was being extended. The court ruled that Smith "was not entitled to personal notice that his probationary period had been extended by his absences." Why? Because, explained the Appellate Division, Smith "was on notice that his probationary period would be extended by his absences since he signed a form acknowledging this and other conditions of his probation."

In sustaining the lower court's dismissal of Smith's Article 78 action, the Appellate Division, citing Swinton v Safir, 93 NY2d 758, noted that "[i]t is well settled that a provi­sional or probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

There is one significant exception to the extension of a probation period in cases of employee absence.

If a probationer in the classified service is absent on military duty and satisfactorily completes his or her military obligation, Section 243.9 of the Military Law provides that his or her military service is to be credited "as satisfactory service" for the purpose of completing his or her probationary period.

Section 243.9-a extends a similar benefit to a teacher in probationary status at the time he or she is called to military duty.

This means that an individual may satisfactorily complete his or her probationary period while on military duty. If the individual is appointed or promoted to a position while on military duty, his or her military service is also to be counted as "satisfactory service" for the purposes of probation.

Another twist to probationary service is that some jurisdictions allow the appointing authority to waive some of the probationer's absence.

This, in effect, reduces the actual time served in probationary status. The New York State Civil Service Commission's Rules, [4 NYCRR 4.5(g)], which apply to employees of the State of New York, for example, provides that:

1. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term; and

2. Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority be considered as time served in the probationary term.

It should also be noted that a probationary employee is a "permanent employee" for the purpose of satisfying administrative due process requirements.

As a general rule, a probationary employee may not be removed from his or her position during the minimum probationary period except for incompetency or misconduct after notice and hearing in accordance with Section 75 of the Civil Service Law or as other­wise provided by a collective bargaining agreement.

A probationary employee, however, may be removed without notice and hearing after completing the minimum probationary period and before completing his or her maximum period of probation, including extensions, except as may otherwise be provided by a collective bargaining agreement.

In contrast to extensions of a probationary period, some jurisdictions authorize the ap­pointing authority to offer a probationer whose performance is rated unsatisfactory an opportunity to serve a second probationary term instead of being terminated for failure to satisfactorily complete his or her initial probationary period.

For example, 4 NYCRR 4.5(5)(ii), again applicable only to employees of the State, provides that the appointing authority, at its discretion, may offer a probationary em­ployee the opportunity to serve a new, second, probationary period of not less than 12 nor more than 26 weeks in a different assignment.

In such cases, the Commission's Rules provide that the appointment may be made permanent at any time after the completion of 12 weeks of the second probationary term or the employment may terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service.

However, an employee serving a second probationary period is probably entitled to "notice and hearing" if he or she is to be terminated before completing 8 weeks of service -- the minimum period of probation in a second probationary period situation.

Full post as published by New York Public Personnel Law on January 22, 2008 (boomark / email).