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Suspension (with or without pay)
  • Suspensions are necessary when it is helpful to remove an employee from the workplace as a corrective measure or while an investigation is ongoing.
  • The employee should be informed of the reason for the suspension, its duration, and the expected behavior following the suspension.
  • Suspensions can be either paid or unpaid depending on circumstances, company guidelines, or outcomes of investigations.

In some cases, it is in the company’s best interest to remove an employee from the workplace pending an investigation or as a corrective measure. When issuing a suspension, be sure to inform the employee of the reason for the suspension, the duration, the expected behavior following the suspension, and the consequences for repeated violations. Written documentation of all suspensions must be properly kept.

If an employee is suspended pending an investigation of misconduct, employers commonly wonder whether the time should be paid. Suspensions are generally considered punitive, and if the investigation confirms the employee’s misconduct, the days of suspension would be unpaid. Many companies choose to clarify that if an investigation shows that the employee did not act inappropriately, the employee will receive wages for the days of suspension (or perhaps will be allowed to use vacation). Managers should coordinate with their payroll/benefits departments whenever time off is involved.

If the misconduct is serious enough to justify termination, the date of termination should be the date that the decision was made upon concluding the investigation. A termination should not typically be back-dated to the first day of suspension because, at that point, the employer did not yet have a documented cause to terminate.

Administrative leave

In some cases, it may be necessary to place one or more employees on administrative leave while an investigation is pending. Administrative leave is generally not a punitive measure, but rather, is commonly done when investigating claims of discrimination or harassment, since it may be necessary to separate the alleged offender from the alleged victim until the credibility of various witness statements or further evidence can be evaluated.

Additionally, administrative leave may be necessary for other types of workplace investigations, such as evaluating possible theft or waiting for the results of a drug test. Since the company won’t know if the employee violated a workplace policy until the investigation is complete, questions undoubtedly arise as to whether the administrative leave should be paid or unpaid.

In these instances, as with suspensions, the company could explain to the employee(s) that payment for their time on leave may depend on the investigation outcome. For instance, if the company determines that no violation occurred (or that the degree of violation did not justify an unpaid suspension), the involuntary leave time will be paid. However, if the investigation discovers that the employee engaged in conduct that would in fact justify an unpaid suspension, the administrative leave may be deemed part of that suspension and would subsequently be unpaid.

All involved employees should also be informed that, whatever the outcome, they will be informed of the investigation’s conclusions and will be given an opportunity to respond before a final determination is made.

Ideally, the investigation can be concluded in a relatively short amount of time (a day or two) and the status of the suspension can be determined before the next regular payday. However, delays can occur for various reasons, such as the need to interview additional witnesses who were not initially identified or the need to wait several days for drug test results.

It may be the case that the timing of a misconduct investigation coincides with payroll processing, and the company must decide whether to process a normal paycheck (counting the suspension as paid time) or record the time as unpaid.

If the investigation outcome is uncertain, the administrative leave should be paid. An employee who is potentially innocent should not suffer a loss of income for several days while waiting for the company to complete an investigation. The employer can impose an unpaid suspension at a later time if the outcome of an investigation concludes it is appropriate.

Of course, employers may also experience situations where the violation is obvious, and the company is only investigating to officially document a decision that has been already made. If the circumstances clearly justify an unpaid suspension (or termination), then administrative leave may be unpaid. In these cases, the employee would still be called back to review the outcome and the consequences — whether this verifies or extends the unpaid suspension, or whether the employee will be terminated based on the investigation results.

Weingarten rights guarantee an employee the right to union representation during an investigatory review.