The probationary period: nine months, not three

It is the time a private-sector employee hired for an indefinite term must serve before being covered by the Act 80-1976 severance, the mesada. While you are on probation, a dismissal is not subject to that severance; once you complete it, it is. Which is why its length matters so much.

It applies to private-sector employees hired for an indefinite term covered by Act 80-1976. The automatic term depends on your classification: twelve months if you are an executive, administrator or professional as defined by the Fair Labor Standards Act; nine months otherwise. For those hired before Act 4-2017 a shorter period applied that had to be set by written contract stating when it began and ended, as Secretary’s Opinion 2022-01 itself describes; we do not publish its length because the opinion does not fix it.

• Being a private-sector employee hired for an indefinite term: that is who Act 80-1976 covers.Verified against the official source
• Knowing your classification: twelve months for executives, administrators and professionals under the Fair Labor Standards Act; nine months for everyone else.Verified against the official source

• The written agreement, if you and the employer agreed a probationary period shorter than the statutory one.

1. 1

   Step 1: First, which law is alive

   Act 41-2022 amended Article 8 of Act 80 to cut the probationary period to three months. That Act was annulled by a decision of Judge Laura T. Swain issued on 3 March 2023, in In re: FOMB v. Pierluisi Urrutia. OGP’s official compilations warn of it up front: they are compiled omitting Act 41-2022’s amendments for that reason. Any article, summary or piece of advice written between 2022 and 2023 may be quoting an annulled law.

2. 2

   Step 2: The term that governs

   Act 4-2017’s. The automatic probationary period is twelve (12) months for employees classified as executives, administrators and professionals as defined by the Fair Labor Standards Act and Regulation No. 7082, and nine (9) months for employees classified as non-exempt, who are those paid by the hour and entitled to overtime. Automatic means it runs from hiring with no need to agree it in writing.

3. 3

   Step 3: What may be agreed

   A shorter period. Employer and employee may agree one shorter than the statutory term, and in unionised employment the one agreed by employer and union governs. Nothing stops the employer from waiving the probationary period either, or recognising you completed it early. What cannot be done is stretching it beyond the automatic statutory term.

4. 4

   Step 4: Why you will read "three months" everywhere

   Because DTRH still publishes on its portal Secretary’s Opinion No. 2022-01, of 28 June 2022, which explains Act 41-2022’s scheme in detail: three automatic months, extendable by up to an additional three by written notice from the employer to the Secretary of Labor, and up to six by collective agreement with no notice at all in unionised shops. That opinion carries no annulment notice. It was written before the March 2023 decision and correctly described the law of the time; what it no longer describes is today’s law.

5. 5

   Step 5: What changes when you complete it

   You come under Act 80’s protection. While on probation, a dismissal is not subject to that Act’s severance. Once the period is complete, if you are dismissed without just cause — capriciously or for reasons unrelated to the proper and normal operation of the establishment — you are entitled to the mesada. Computing that severance has its own rules and we cover it in another guide.

6. 6

   Step 6: And if you were hired before 2017

   Secretary’s Opinion 2022-01 mentions it in passing: before Act 4-2017 a shorter period applied, which had to be set by written contract stating when it began and ended. The opinion does not publish its length and we do not invent it. If that is your case, look for your employment contract: both dates should be in it.

There is no filing to make: the probationary period runs on its own. If you are dismissed and believe you had already completed it, a wrongful-dismissal claim goes to the Department of Labor and Human Resources or to court, and the time limit to claim is short.

• Using Act 41-2022’s three months: that Act was annulled on 3 March 2023 and the official compilations omit its amendments.
• Relying on Secretary’s Opinion 2022-01 as-is: it is still published on DTRH’s portal, but with no annulment notice.
• Believing the probationary period must be agreed: it is automatic from hiring.
• Accepting a probationary period longer than the statutory automatic term.
• Forgetting that a written agreement for a shorter period is valid, and that in unionised shops what employer and union agree governs.
• Confusing the probationary period with computing the mesada, which follows other rules of Act 80.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  www.trabajo.pr.gov

• Official compilation of Act 80-1976 (OGP), which warns that it omits Act 41-2022’s amendments because that Act was annulled

  Oficina de Gerencia y Presupuesto

  bvirtualogp.pr.gov