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Investigatory Suspension: Paid or Unpaid?

 

Question

We have a full time employee who will be suspended pending the outcome of a sexual harassment accusation against him. Are we required to pay him for the hours that he would have regularly worked had he not been suspended?

Response

Absent a contract that otherwise governs the issue, the employer can, and in this scenario should, suspend without pay, but keep in mind that unpaid suspensions are generally only permitted for exempt employees if the suspension is in whole week increments.

When it comes to investigating possible conduct infractions in the workplace, depending upon the severity of the allegations, it may be necessary to suspend the accused employee(s) so they are removed from the workplace while the employer investigates. Often this enables the employer to impartially investigate without interference, and also reduces (or perhaps eliminates) the risk of any potential further harm at the hands of the accused in the interim.

If the employer's investigation, when concluded, reveals no wrongdoing (or perhaps did not reveal any action on the part of the accused that warranted an unpaid disciplinary suspension), the employer can always issue back pay to the suspended employee to make him whole. If, however, the employer determines after it investigates that a suspension was appropriate as a disciplinary action, then the unpaid suspension was already underway as a punitive measure. If termination of employment is to be outcome of the investigation, the unpaid suspension-pending-investigation ensured that the accused employee ceased to earn wages as of the time the investigation commenced.

We recommend that the employer have in place written policies relative to workplace investigations, including the rights to mandate unpaid suspensions as may accompany them. If you do not already have such a policy or policies in effect, we advise that the employer draft and implement the same. Sample policies are available in the Federated Employment Practices Network located in the Federated Shield Network website. Employers would do well to ensure that any new or revised policy is clearly communicated to employees, and then uniformly and consistently enforced once in effect.

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