Probationary Termination With a Thin File

Representation depends on the purpose of the meeting. The representational right attaches to an investigatory meeting where the employee reasonably believes discipline may result and requests representation. If the meeting is purely to deliver a decision already made - no questions, no opportunity to explain - the right generally does not attach, because there is nothing to investigate.

Practical handling: state the purpose in writing in advance. If the supervisor intends to ask any questions about the altercation or the lapsed payment, the meeting is investigatory and the employee should be allowed a representative. If the county is not prepared to allow representation, it should not ask questions at that meeting and should conduct any investigation separately. Also check the CBA: many public-sector agreements are broader than the federal standard and apply regardless of union membership status.

File access is governed by state personnel-records statute and the CBA, and many jurisdictions give employees a right to inspect their own personnel file, often with a copy on request. Check both, respond within any statutory deadline, and do not refuse simply because the request arrived alongside a disciplinary action.

Probationary status lowers the just-cause bar; it does not lower the discrimination and retaliation bar. On this record the county would be terminating an employee who has an EEOC charge pending, on a file that would not survive examination:

• Two undated memos with no acknowledgment prove little - no date, no signature, and no indication the employee was told what to correct.
• The lapsed payment is serious but uninvestigated: it is unknown whether the error was his, whether he had been trained, whether a control failed, or whether others made the same error without consequence.
• "A verbal altercation" in a two-line email names no behavior, no witnesses, and no investigation.

Recommended course:

1. Verify probation terms - start date, any extension rules, and the contractual notice provisions.
2. Investigate the two substantive incidents now, with dated statements and a written report; interview the employee and give him a chance to respond.
3. Compare treatment of similarly situated probationary and permanent employees.
4. Then decide. Termination may still be defensible if the findings are documented and the rationale is performance-based. If the county instead extends probation, it must be prepared to explain why - as it will look reactive to the charge.

Do not simply let the 12 months lapse and call it "automatic."

• Counseling memos should record date, the specific behavior observed, the expectation, the consequence of recurrence, and a signature line - with a supervisor notation of "refused to sign" and the date if the employee declines. An unsigned memo still has value if it is dated and delivered.
• Incident investigations should produce a report with the allegation, witnesses interviewed, findings, and the discipline rationale. A two-line email is a tip, not a finding.
• Probationary evaluations should be scheduled at defined points (for example 3, 6, and 9 months) so that problems surface while there is time to correct them, and so a late termination does not look pretextual.
• Employee relations files should be centralized in HR rather than held in a supervisor's desk drawer, so the county can compare treatment across departments.
• Supervisor training on documentation standards is cheaper than the settlements that follow inadequate records.