Probationary Period Rules in Wisconsin: Can You Be Fired?

Federal law prohibits employment discrimination regardless of probationary status. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) protects employees at firms with 15 or more employees from termination based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act (ADEA, 29 U.S.C. § 623) protects individuals age 40+ at employers with 20+ employees. The Americans with Disabilities Act (ADA, 42 U.S.C. § 12101) requires reasonable accommodations for qualified disabled employees at employers with 15+ employees, even during probation.

The Family and Medical Leave Act (FMLA, 29 U.S.C. § 2601) protects eligible employees from termination for taking qualifying leave at covered employers (50+ employees). Employees cannot be fired for refusing illegal acts, reporting violations (whistleblower protection under 49 U.S.C. § 31002 and similar statutes), jury duty, or other protected conduct. The EEOC enforces federal anti-discrimination laws with a 180-day filing deadline (extended to 300 days in dual-filing states). While probation may establish an expectation of continued at-will employment, federal protections apply from day one of employment.

Wisconsin follows at-will employment doctrine codified in common law and reflected in Wisconsin Statutes § 230.34 for public employees. Under Wisconsin law, an employer may terminate an at-will employee with or without cause and without notice unless a contract, statute, or public policy exception applies. Importantly, probationary status does not eliminate legal protections; probationary employees remain covered by the Wisconsin Fair Employment Act (WFEA), § 111.31 et seq.

The WFEA prohibits discrimination based on age (40+), race, color, creed, sex, national origin, disability, marital status, sexual orientation, gender identity, military service, arrest or conviction record (with narrow exceptions), and refusal to submit to genetic testing. Wisconsin employers with even one employee must comply with WFEA protections, making Wisconsin significantly broader than federal law, which requires 15 employees for Title VII coverage. An employer cannot legally terminate a probationary employee based on these protected characteristics, even if the employer claims the termination is for "at-will" reasons.

Wisconsin recognizes implied-in-fact contracts that may limit at-will employment, particularly where an employer's handbook or oral promises suggest job security. In such cases, an employee may challenge termination as a breach of contract. Wisconsin also recognizes the public policy exception: an employee cannot be fired for performing a legal duty (e.g., jury service) or reporting illegal conduct. Probationary employees retain full whistleblower protections under Wisconsin Statutes § 230.80 (public employees) and federal whistleblower statutes. Remedies under WFEA include back pay, front pay, compensatory damages, punitive damages (in cases of intentional discrimination), and attorney fees.

Wisconsin recognizes several exceptions and limitations to at-will employment, even during probation. First, an employer cannot fire an employee for performing a legal duty, such as serving on jury duty (Wisconsin Statutes § 756.255). Second, public policy protections prevent termination for reporting illegal conduct or workplace hazards to internal or external authorities. Third, implied-in-fact contracts created by employer handbooks, employee manuals, or oral promises of job security may limit at-will employment; courts examine whether the employer's conduct or representations indicated an intent to limit discharge at-will.

The WFEA contains no probationary period exception; all protected-class protections apply equally to probationary and regular employees. However, probation does not create an implied contract; the burden is on the employee to prove the employer made representations of job security. Collective bargaining agreements, if applicable, override at-will employment and typically require just cause for discharge even during probation. Independent contractors and sole proprietors are excluded from WFEA protection. Additionally, at-will employment does not apply to public sector employees covered by Wisconsin Statutes § 230.34, which imposes specific termination procedures in many cases.

Employers may legally terminate probationary employees for poor performance, failure to meet job requirements, insubordination, or violations of workplace rules if these reasons are applied consistently and are not pretexts for discrimination. The critical distinction is that the stated reason cannot mask an illegal discriminatory motive. For example, terminating a probationary employee for "poor communication" is lawful unless the communication issue was not applied to non-protected employees or was caused by a disability requiring accommodation.

Step 1: Document Everything. From day one of employment, maintain detailed records of: (1) performance evaluations and feedback received, (2) emails, messages, or written warnings about your work, (3) dates of termination and any explanation provided in writing, (4) contemporaneous notes describing discriminatory comments, unequal treatment, or retaliation, (5) comparisons showing how non-probationary or different-background employees were treated during their probation, (6) any evidence that the stated reason for termination was a pretext (e.g., employer's handbook policies, prior similar conduct by others not terminated). Keep originals and copies separate.

Step 2: Pursue Internal Remedies if Possible. Before filing externally, review your employee handbook for grievance procedures and consider submitting a written complaint to HR or management within 5-10 business days of termination. Document that you raised concerns internally, as this strengthens retaliation claims and shows you attempted resolution. However, internal complaints are not required and will not extend filing deadlines; proceed to Step 3 even if internal resolution seems unlikely. Keep a copy of any internal complaint submitted.

Step 3: File with the Wisconsin Department of Safety and Professional Services (DSPS) or EEOC. Wisconsin has 300 days from termination to file a discrimination complaint with DSPS (dual-filer arrangement with EEOC). File with: Wisconsin DSPS, Equal Rights Division, 201 E. Washington Ave., Room 161, Madison, WI 53703, Phone: (608) 266-6860, or online at dsps.wi.gov. Include: (1) your name and contact information, (2) employer name and address, (3) date of hire and termination, (4) protected characteristic (age, race, disability, etc.) you believe motivated termination, (5) specific facts and dates showing discrimination or violation, (6) how you were harmed (lost wages, emotional distress), (7) statement that termination occurred during probation. Alternatively or simultaneously, file with the EEOC at eeoc.gov or visit the Chicago District Office (for Wisconsin): 500 W. Madison Street, Suite 2000, Chicago, IL 60661, Phone: (312) 353-2713. The EEOC processes federal claims (Title VII, ADA, ADEA, GINA).

Step 4: Investigation Process. After filing, DSPS and/or EEOC will send you an acknowledgment letter with a case number (typically within 2 weeks). Expect the agency to: (1) contact the employer for a written response within 10-14 days, (2) review documents and interview witnesses (3-6 months typical timeline, though complex cases may take longer), (3) issue a determination letter stating whether probable cause exists that discrimination occurred. If probable cause is found, you may be invited to mediation (optional but recommended). If no probable cause, you can request an appeal or proceed to private lawsuit. Many discrimination cases resolve during investigation or mediation.

Step 5: Consult an Attorney. Contact a Wisconsin employment law attorney immediately if: (1) you are terminated during probation under suspicious circumstances or after raising safety concerns, (2) you belong to a protected class and were treated differently, (3) the employer offers a settlement, (4) you need to file a lawsuit (must occur within 2 years of termination for state WFEA claims under Wisconsin Statutes § 893.43; 90 days from EEOC right-to-sue letter for federal claims). An employment attorney can review your case for free or low cost, help gather evidence, negotiate with the employer, and represent you before administrative agencies or court. Look for attorneys experienced in employment discrimination, wrongful discharge, or breach of implied contract under Wisconsin law.