“Probation period in offer letter was extended; can they do that?”

Question: I was given an offer letter for employment that contained a six-month probationary period. On this basis, I moved to a different state to take the job. Ten months later, and four months after my probationary period was over, it was agreed that I had done all of my work in satisfactory fashion, and had met every deadline.

Then, I was notified that my offer letter was mistaken, and that it should have had a twelve-month probationary period, instead of a six-month one. Though the manager apologized to me, he also told me that I was being terminated.

Do I have a case for breach of contract?

Vancouver, Washington

Answer: Dear Elaine: Your question reminds me very much of the questions law school graduates are faced with on the bar exam. Though I cannot read the exact words of your “offer letter,” I will try to give you my best answer based on the limited facts you’ve provided.

1. As a general rule, an “offer letter” is a contract, and a contract’s terms and conditions are binding on both parties. An “offer letter” is a kind of contract, although it is usually presented in a very simple form. “Offer Letters” are just what they sound like: written in the form of a letter, offering employment on certain terms and conditions, which can be “accepted” by your signing and returning it to the employer. Once the “offer” is “accepted,” the “contract” is binding.

If your offer letter contained a six-month probationary period, then you were on probation for six months, and – perhaps of greater relevance – not on probation for six months and a day, or seven months, or twelve months, but only for the first six months. Period.

For those interested in the general subject of “Offer Letters,” you might want to review a newsletter I wrote entitled “Offer Letters – What to Look For, What to Look Out For.” To do so, just [ click here. ]

2. However, what is not expressed in an offer letter or contract is sometimes more important than what is expressed in it. Many years ago there was a movie with the title “The Pink Panther.” A scene from that movie illustrates this point. In the scene, a man sees a woman standing next to a small dog. The man says to the woman, “Does your dog bite?” The woman responds, “No.” The man then leans over to pet the dog, and the dog viciously bites his outstretched hand. The man then says to the woman, “I thought you said your dog did not bite,” to which she replies “That is not my dog.” The moral of this story: the man forgot to ask, at the beginning, “Is that your dog?” You see, what he did not ask was more important than what he did ask. And, so it is often the case that “What is not in a contract is more important than what is in it.”

In like fashion, in your offer letter, did it say, “After your six month probationary period is over, you have a secure job for one year, or two years, etc.?” If it did say words to that effect, then Elaine, what happened to you sure seems to be a breach of contract, because the extension of your probationary period from six months to twelve months without your prior agreement would violate that promise.

However, if your offer letter is silent about what happens to your employment relation after the initial probationary period, then the law says the absence of a specified and “committed” period of employment in the offer letter or contract after your probationary period, then that silence makes you an “at will” employee, which means that either you or your employer may end the employment relation at any time.

We offer a Master Checklist of Employment Negotiation Items” to help you make sure you have not failed to raise any issues, and that your interests are protected in any offer letter or employment contract. To obtain a copy, just [ click here. ] Delivered by Email – Instantly!

3. If an employment relation is “at will,” either from the beginning of the relation or after an initial “committed” period of time, the employee or the employer are both free propose to the other a whole new set of terms and conditions. It is something like a lease on an apartment: if the landlord and tenant agree on a rent of $800 a month for a term of two years, then both the landlord and the tenant must abide by that agreement for the two year period.

Just before the lease term expires, the tenant can say to the landlord, “Hey, there is never enough hot water; if you want me to stay on as your tenant, then the rent must be lowered to $500 a month.” Or, the landlord can say to the tenant, “This neighborhood is becoming so much nicer. After the lease term is over, if you want to stay in the apartment, the new rent will be $1,500 a month.” If they can compromise or otherwise agree on new terms, they can continue their landlord-tenant relation; if they cannot compromise or agree, the relation is over, and the tenant must move out of the apartment.

If your offer letter says nothing about what happens after the initial six months, or if it clearly says “after the six-month probationary period, you become an at-will employee,” then what your employer did is like what the landlord can do to the tenant at the end of the lease: ask you to leave.

4. As is so often the case, the words – and even the punctuation marks – of an offer letter, or a contract, must be carefully read to get the best understanding. I have decades of experience in drafting, reading and negotiating offer letters and employment contracts, and despite all that experience, I still read every single offer letter and contract at least three times, to ensure I have not missed anything.

And then I read every offer letter and employment agreement one more time, and say to myself, “Ok, Al, what is missing from this offer letter or employment agreement?” It is often this last review that is more important than the first offer letter review. In your case, Elaine, what it says in your offer letter, and what might be missing from it, will likely provide the definitive answer to the question you pose.

For those who need individual attention and assistance, I am available for telephone consultations for 30 minutes, 60 minutes, or “full consultations” lasting 1-1/2 to 2 hours. If you would like to set up a consultation, just [ click here. ]

5. Please don’t assume a lawsuit is your only remedy; a firm, yet respectful, letter costs little and may just “do the trick.” Like so many of our blog readers, Elaine, you have asked whether you have a “case” to sue your former employer. Unlike so many lawyers, I almost always try to see if my clients and readers may – with a little direction from me – obtain what they deserve without the expense of a lawyer.

As my frequent readers know, I often suggest, “Try a letter, sent with conviction and respect, asking for what you feel you deserve, using what you have learned from our blog.” These efforts cost so little, and so often are successful that it is almost foolish not to give it a try.

Sometimes you need to make a formal request to a former employer in order to receive monies that either you have earned or that is otherwise owed to you. We offer a “Model Letter to Demand Unpaid Compensation from a Former Employer.” “What to Say and How to Say It.”™ To obtain a copy, just [ click here. ] Delivered by Email – Instantly!

Elaine, I hope this makes things a bit clearer for you, and gives you the ability to (a) go back and read your offer letter carefully, and then (b) take steps to enforce your rights and protect your interests to your best ability. That’s what SkloverWorkingWisdom™ is all about.

My Best,
Al Sklover

P.S.: Want to learn more of this “good stuff” regularly? You can Receive Each of Our Blog Posts Automatically, Free, By Email if you just [click here.] And we promise: we never sell, lease or let anyone see our subscriber list. Never, ever.

© 2013 Alan L. Sklover, All Rights Reserved.

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