Fired During Your Probationary Period in California — What "90-Day Probation" Actually Means and When It's Wrongful Termination

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Last updated: August 2026 — Reflects Labor Code § 2922 (at-will employment), Government Code § 12940 (FEHA), Government Code § 12960 (filing deadlines), Labor Code § 1102.5 (whistleblower), and California Civil Rights Department enforcement guidance current as of January 1, 2026. 1000Attorneys.com is a California State Bar Certified Lawyer Referral Service (LRIS #0128), American Bar Association Authorized Program, and LawHelpCA Verified Resource. Rated ★ 4.9 on Google. Authored by JC Serrano, Founder — LRIS #0128.

The 90-day probationary period is one of the most misunderstood concepts in California employment law — misunderstood by employees who believe it means their employer can fire them for any reason, and misunderstood by employers who believe the same thing gives them unlimited protection from legal claims.

Both are wrong.

California's at-will employment doctrine under Labor Code § 2922 means an employer can fire an employee for any lawful reason — with or without a probationary period, and with or without warning.

What the probationary period does not do is suspend California's anti-discrimination, anti-retaliation, and anti-harassment laws. Those protections apply from the first day of employment, and a termination that violates them during a probationary period is just as actionable as one that occurs five years into a career.

What "Probationary Period" Actually Means in California Law

California law does not define or regulate the probationary period. It is an employer-created concept — typically a 60-, 90-, or 180-day window that appears in offer letters, employee handbooks, and onboarding documents as a period during which the employer evaluates the new employee's fit and performance.

The probationary period has one meaningful legal consequence: it can affect the implied contract analysis.

California courts have recognized that employment handbooks and policies can create an implied contract not to terminate without cause — but most probationary period policies explicitly preserve at-will status during the probationary window, and courts generally enforce those provisions.

This means a probationary employee typically cannot point to an employee handbook to argue they were entitled to progressive discipline or a warning before termination.

What the probationary period does not affect:

• FEHA protections against discrimination, harassment, and retaliation under Government Code § 12940 — these apply from day one

• Whistleblower protections under Labor Code § 1102.5 — these apply from day one

• Wage and hour protections — full Labor Code coverage applies regardless of tenure

• The right to file a workers' compensation claim — retaliation for doing so is illegal from day one

• FEHA's reasonable accommodation obligation — an employer must engage in the interactive process even for a probationary employee with a known disability

The Central Misconception — What "At-Will During Probation" Does Not Mean

Employers and employees alike frequently treat the probationary period as a blanket liability shield. It is not.

At-will employment means the employer can terminate for any lawful reason. That qualifier does all the work. The following reasons are never lawful — regardless of whether the employee is on probation:

• The employee disclosed a pregnancy and was terminated shortly after

• The employee made an internal complaint about discrimination or harassment before being terminated

• The employee filed a wage claim or workers' compensation claim and was terminated in retaliation

• The employee disclosed a disability or requested an accommodation and was terminated

• The employee's race, age, national origin, religion, sexual orientation, or another FEHA-protected characteristic was a substantial motivating factor in the termination

• The employee disclosed a legal violation to a supervisor or government agency and was terminated within 90 days

Each of these scenarios is actionable under California law whether the employee was terminated on day three or day three thousand.

The Probationary Period and FEHA — Day One Coverage

FEHA applies to employers with five or more employees and covers employees regardless of tenure. There is no minimum employment period required before FEHA protections attach. A new employee who is fired on day one because of their race has a FEHA discrimination claim.

A new employee who is fired on day 45 because they disclosed a pregnancy has a FEHA discrimination claim. A new employee who complains about sexual harassment on day 60 and is fired on day 62 has a FEHA retaliation claim.

The probationary framing the employer uses internally does not change the legal analysis. What matters is whether a protected characteristic or protected activity was a substantial motivating factor under Government Code § 12940 — not how long the employee had been working.

Patterns That Make a Probationary Period Termination Actionable

Pattern 1 — The protected characteristic surfaces during the probationary period. An employee discloses pregnancy, announces a religious observance requirement, requests a disability accommodation, or reveals a protected characteristic for the first time during the 90-day window. The employer terminates shortly after the disclosure — citing performance or fit concerns that did not previously appear in any documentation. The timing is the evidence.

Pattern 2 — The protected complaint precedes the termination. The employee raises a concern about discriminatory treatment, reports a safety violation, complains about harassment, or files a wage claim during the probationary period. The employer terminates — citing the probationary period as the rationale. Under Labor Code § 1102.5, a termination within 90 days of a protected disclosure creates a rebuttable presumption of retaliation. The probationary framing does not override that presumption.

Pattern 3 — The employer uses probationary period as manufactured cover. The termination is communicated as a routine end-of-probation decision — "not the right fit" — but the actual reason is the protected characteristic or activity. This pattern is identifiable through comparative evidence: other probationary employees with similar performance profiles were retained, or the performance concerns that appear in the termination documentation did not appear in any prior communication with the employee.

Pattern 4 — The employer fails to accommodate a disability discovered during probation. FEHA requires an employer to engage in a good-faith interactive process before making an adverse employment decision against an employee with a known disability. Terminating a probationary employee because they cannot perform certain functions — without first engaging in the interactive process to evaluate whether a reasonable accommodation would enable performance — is a FEHA violation regardless of tenure.

What the Evidence Looks Like in Probationary Termination Cases

Probationary period cases typically involve less documentary evidence than long-tenure cases because the employment relationship is short. The evidence that matters most:

The offer letter and any written policies. These establish whether the probationary period was explicitly tied to at-will status or whether any performance expectations were documented. A probationary checklist that shows the employee was meeting expectations before a protected event undermines the employer's stated rationale.

Communications during the probationary period. Emails, Slack messages, and verbal feedback given to the employee during the 90 days. Positive feedback on performance shortly before termination — combined with sudden termination after a protected event — is strong pretext evidence.

The timeline of protected events. When did the disclosure, complaint, or accommodation request occur relative to the termination? The shorter the gap, the stronger the temporal proximity argument.

Comparator evidence. Were other probationary employees with similar performance profiles retained? Were similarly situated employees who did not engage in protected activity kept past the probationary period?

The Filing Deadline — Do Not Wait

The three-year FEHA filing deadline under Government Code § 12960 applies from the date of termination regardless of probationary period length. However, probationary terminations present a specific evidence preservation challenge: the employment relationship was short, meaning there are fewer documents, fewer witnesses, and fewer records overall.

The evidence that exists — offer letters, onboarding emails, performance feedback, the termination communication — degrades faster when the employment was brief.

Filing early preserves more options. Waiting until late in the three-year window risks losing evidence that would have been available immediately after termination.

• For the complete wrongful termination framework that applies regardless of tenure, see our California wrongful termination guide.

• For the full FEHA filing process, see our guide on how to report workplace discrimination in California.

• For an estimate of what a probationary period wrongful termination claim may be worth, use our California Wrongful Termination Compensation Calculator.

• For the complete statute of limitations framework, see our guide on the California wrongful termination statute of limitations.

Frequently Asked Questions

Can I be fired for any reason during my 90-day probationary period in California?

An employer can fire a probationary employee for any lawful reason — but not for an illegal one. California's at-will doctrine under Labor Code § 2922 permits termination without cause, but not termination based on a protected characteristic or in retaliation for a protected activity. FEHA protections against discrimination, harassment, and retaliation apply from the first day of employment regardless of probationary status.

Do FEHA protections apply to new employees still in their probationary period?

Yes — from day one. Government Code § 12940 applies to employers with five or more employees and places no minimum tenure requirement on the employee before protections attach. A new hire who is terminated during their probationary period because of their race, pregnancy, disability, religion, age, or national origin has a FEHA discrimination claim regardless of how long they had been employed.

My employer said I was terminated because I wasn't the right fit during probation. Is that legal?

It depends on the real reason. "Not the right fit" is a subjective rationale that is frequently used to mask discriminatory or retaliatory motives. The legal analysis focuses on whether a protected characteristic or protected activity was a substantial motivating factor in the decision — not on the label the employer applies. If the termination followed a protected disclosure, a discrimination complaint, or the revelation of a protected characteristic, the "fit" explanation may be pretextual.

I was fired during probation after complaining about harassment. Do I have a claim?

Yes — this is a textbook retaliation pattern. A termination that follows a protected complaint about harassment or discrimination is retaliation under Government Code § 12940(h) regardless of probationary status. Under Labor Code § 1102.5, a termination within 90 days of a protected whistleblower disclosure creates a rebuttable presumption of retaliation. The fact that the employer frames the termination as a routine probationary decision does not change the legal analysis.

Does the probationary period affect the deadline to file a wrongful termination claim?

No — the three-year FEHA deadline under Government Code § 12960 runs from the date of termination regardless of how long the employment lasted. A probationary termination on day 45 gives the employee three years from day 45 to file a CRD complaint. However, evidence in short-tenure cases degrades faster — filing promptly after a probationary termination preserves more options than waiting.

Can an employer use a probationary period to avoid providing reasonable accommodation for a disability?

No. FEHA's reasonable accommodation obligation under Government Code § 12940(m) applies regardless of tenure. An employer who learns of a disability during a probationary period must engage in the interactive process before making any adverse employment decision based on the employee's inability to perform job functions. Terminating a probationary employee without first exploring reasonable accommodation is a FEHA violation.

DISCLOSURE This article is published by 1000Attorneys.com, a California State Bar Certified Lawyer Referral and Information Service, LRIS Certificate No. 0128, accredited by the American Bar Association and established in 2005. The information on this page is for general educational purposes only and is not legal advice. 1000Attorneys.com is not a law firm and does not provide legal representation. For legal advice about your specific situation, consult a qualified California attorney.