Probationary Period Rules in California: Can You Be Fired?

Under federal law, probationary employees are protected by Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), the Age Discrimination in Employment Act (29 U.S.C. § 623), the Americans with Disabilities Act (42 U.S.C. § 12101), and other federal statutes. These laws prohibit discrimination in hiring, discharge, and all terms and conditions of employment based on race, color, religion, sex, national origin, age (40 and older), disability, and genetic information. Probationary status does not exempt employers from these obligations.

Federal law does not mandate probationary periods; employers may establish them voluntarily. However, once established, probation is subject to the same anti-discrimination rules as regular employment. Employers covered include those with 15 or more employees for one or more calendar weeks in the current or preceding calendar year (Title VII threshold).

Under federal law, an employee fired during probation for discriminatory reasons may file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the unlawful termination (or 300 days in deferral states). Remedies available include back pay, front pay, compensatory damages for emotional distress, punitive damages (in cases of intentional discrimination), and attorney fees. The EEOC investigates and may issue a right-to-sue letter allowing the employee to bring a civil lawsuit.

California law provides broader protections for probationary employees than federal law alone. California Government Code section 12940 prohibits employment discrimination based on race, color, religion, sex, national origin, ancestry, physical disability, mental disability, genetic characteristics, marital status, sexual orientation, gender identity, gender expression, military and veteran status, and age (without a minimum age threshold, unlike federal law's 40-year requirement).

California treats probationary employees as at-will employees under Labor Code section 2870, meaning either party may terminate the employment relationship at any time for any lawful reason or no stated reason. However, California public policy—established through case law and statute—prohibits termination for certain reasons even of at-will probationary employees. Specifically, employers cannot terminate during probation for: (1) exercising a legal right (e.g., voting, jury duty, military service); (2) reporting suspected law violations to government agencies (Labor Code § 1102.5, whistleblower protection); (3) filing a workers' compensation claim (Labor Code § 132a); (4) taking protected leave under the California Family Rights Act or California Pregnancy Disability Leave law; or (5) discriminatory reasons prohibited by FEHA.

Unlike some states, California imposes no maximum probationary period by statute. Employers may legally establish probation lasting 90 days, 6 months, or longer if specified in writing. However, statutory protections apply immediately upon hire, even on day one of probation. Probationary employees also retain rights to minimum wage, overtime, meal and rest breaks, paid sick leave, and other wage-and-hour protections.

California's statute of limitations for discrimination claims is longer than federal law. Employees have 300 days from the unlawful termination to file a complaint with the California Department of Fair Employment and Housing (DFEH) under Government Code section 12960. Remedies under California law include back pay with interest, front pay, compensatory and punitive damages, damages for emotional distress and reputational harm (often higher than federal courts allow), and attorney fees and costs. California Labor Commissioner can also award waiting time penalties and other wage restitution.

California has no state-imposed maximum probationary period; employers may set their own length.

You have 300 days from termination to file a DFEH complaint in California (vs. 180 days federally under Title VII in non-deferral states).

California FEHA covers employers with 1 or more employee (no size threshold); federal Title VII covers employers with 15+ employees.

DFEH damages can exceed federal caps; compensatory damages are uncapped under California law, whereas federal damages have statutory caps under Title VII.

Probationary employees retain all statutory wage protections (minimum wage, overtime, rest breaks) from day one of employment.

Probationary employees are not exempt from at-will employment status under California law, but several exceptions apply to the termination right even during probation.

Union and collective bargaining agreement employees: If a probationary employee is covered by a union contract, the probationary terms in the agreement supersede the default at-will rule. Many union contracts prohibit termination of probationary employees except for just cause, and the grievance arbitration process may override at-will termination. Employers cannot use probation to circumvent union contract protections.

Public employees: Government employees, including probationary hires, have constitutional due process rights under the Fourteenth Amendment and may have broader tenure protections than private-sector at-will employees. Some public employers require cause findings before terminating probationary employees.

At-will exceptions by statute and public policy: Even probationary employees cannot be terminated for exercising legal rights (jury duty, voting, military service under Uniformed Services Employment and Reemployment Rights Act), filing workers' compensation claims, reporting wage-and-hour violations, or taking legally protected leave. Labor Code section 1102.5 provides broad whistleblower protection for probationary employees reporting violations to government agencies, and the employee cannot be required to report internally first.

Independent contractors and temporary workers: True independent contractors are not employees and lack FEHA protections, though the ABC test under AB 5 and Dynamex makes misclassification risky. Temporary employees placed by staffing agencies may have limited protections depending on the agency relationship.

Employer defenses to discrimination claims: Even during probation, an employer may defend a termination by proving legitimate, non-discriminatory business reasons for the decision (mixed-motive analysis under California law is strict). However, the burden shifts to the employer once the employee establishes a prima facie case of discrimination. Probationary status itself is not a defense to discrimination; poor performance is only a defense if the employer can prove the termination reason was purely performance-based and unrelated to protected status.

Contracts superseding at-will status: If an employee has a written contract promising employment for a specified term or restricting termination to just cause, that contract overrides the probationary at-will default.

Step 1: Document Everything Immediately. Keep detailed records of all interactions, emails, feedback, and performance evaluations during your probationary period. Save copies of emails, instant messages, text communications, and written performance reviews. Document the date, time, and substance of any conversations where your manager made comments related to a protected characteristic (race, age, religion, disability, etc.). Record any deviations in how your supervisor treated you compared to non-probationary or non-protected-class employees. Take screenshots of messaging platforms and save them with timestamps. Note your job duties, hours worked, and any tasks you completed successfully to demonstrate performance.

Step 2: Attempt Internal Complaint Before External Filing (When Safe). Many employers have internal anti-discrimination or complaint procedures. Review your employee handbook for a grievance or complaint procedure; if one exists, consider filing a written complaint with HR or your manager's supervisor, depending on the policy. Send the complaint via email to create a record of the date and content. In your complaint, state clearly that you believe the termination decision was based on a protected characteristic and reference specific dates and statements that support this claim. Keep a copy for your records. Note that California Labor Code section 1102.5 does not require internal reporting before external agency complaint, so you are not obligated to report internally first if doing so feels unsafe or futile. If the employer has a history of retaliating against complainants, consider proceeding directly to Step 3.

Step 3: File a Complaint with the California Department of Fair Employment and Housing (DFEH). You have 300 days from the date of termination to file. Visit dfeh.ca.gov or call 1-888-4-DFEH-CA (1-888-433-3422). You may file a complaint online, by mail, or in person at your nearest DFEH office. You will need: (1) your name, address, and phone number; (2) the employer's name and address; (3) the date of termination; (4) a detailed description of what happened, including dates of incidents, names of witnesses, and the protected characteristic you believe motivated the decision; (5) any documentation (emails, reviews, comparable treatment of other employees); and (6) whether you have already filed a complaint with the EEOC (federal agency). Filing with DFEH does not cost money and does not require an attorney. You can simultaneously file with the EEOC; the agencies cross-file complaints, so one filing covers both. Alternatively, file directly with the EEOC at eeoc.gov or call 1-800-669-EEOC; the EEOC will cross-file your complaint to DFEH automatically because California has a worksharing agreement.

Step 4: Expect Investigation and Provide Cooperation. After you file, the DFEH or EEOC will contact you and the employer to begin a fact-finding investigation, usually within 2-4 weeks. An investigator will request documents from both parties, including your personnel file, performance reviews, communications, and records of how similarly situated employees were treated. You will be asked to provide a detailed statement and may be interviewed by phone or video. The employer will be asked to respond and provide its own evidence. The investigation typically takes 6-12 months, though timelines vary. During this period, do not delete any documents or communications; federal and state law requires preservation of evidence. Cooperate fully with investigators by providing requested documents promptly and being available for interviews. Do not contact witnesses on behalf of the agency—let investigators do that—but you may provide a list of witnesses who can support your account.

Step 5: Consult an Employment Attorney Early If Retaliation Occurs or Settlement Discussions Begin. If the employer retaliates against you after you file (e.g., blacklists you, gives negative references, terminates you if still employed), document this immediately and report it to DFEH or EEOC. Retaliation is illegal under California Government Code section 12965 and federal law. Hire an employment discrimination attorney if: (1) the agency issues a right-to-sue letter (meaning they have completed investigation and closed the case, allowing you to sue privately); (2) the employer or their counsel contacts you to discuss settlement; (3) the investigation indicates a violation was found; or (4) you believe the investigation is stalling or biased. An employment attorney will review the evidence, evaluate your damages (lost wages, emotional distress, punitive damages), and represent you in settlement negotiations or private litigation. Many employment attorneys work on contingency for discrimination cases, meaning you pay no upfront fee and they receive a percentage of the recovery. Initial consultations are often free. Expect the attorney to demand copies of your documentation, the DFEH/EEOC investigation file, your employment contract (if any), and witness contact information.