Suspension from work, without pay (unpaid suspension), is the temporary removal of an employee from performing his/her work duties and from receiving pay, as a disciplinary measure. Many employers who have progressive discipline policies use unpaid suspension for employee misconduct: such as theft, unsafe work behavior and company policy violations.
Employers are generally well within their legal right to use this form of discipline, especially when the employee is non-exempt. The rules regarding exempt employees are slightly more stringent.
An exempt employee is paid on a salaried basis. This means that the employee’s salary is a fixed amount that doesn’t depend on how many hours the employee works. As long as the employee performs some work during the pay period, he/she is entitled to his/her full salary amount for that pay period. Likewise, an exempt employee is not entitled to overtime, and will not be paid extra when he/she works more than 40 hours per week. In order to be considered an exempt employee, one must earn a minimum of $455 per week or $23,660 per year.
When an employer suspends an exempt employee without pay, the employer runs the risk of changing the employee’s status to non-exempt and being liable for overtime pay, which can become very costly. However, an employer can impose an unpaid work suspension on exempt employees as a penalty imposed in good faith for violations of workplace conduct rules, such as prohibitions regarding sexual harassment, workplace violence or drug or alcohol use, or for violations of state or federal laws. This provision refers to serious misconduct, not performance or attendance issues.
It is also important that the employer, who uses this form of disciplinary procedure, has some sort of an employee handbook or policies and procedures manual, which spells out the employer’s discipline policy and specifies work suspension as a remedy within that policy.
Because of the widespread adoption of the doctrine of employment at will, it is usually difficult, if not impossible, to challenge an unpaid suspension. This doctrine refers to the arrangement between employers and employees, wherein the employment relationship may be terminated by either party at any time, for unspecified reasons. Although at will employment does not require good cause to fire an employee, there are statutory and common law exceptions.
At will employment does not protect an employer for practicing employment discrimination or wrongful termination, but in order to file these claims, an employee must be able to show that they are a member of a protected class and that the suspension was motivated by the discrimination.
If your employer has placed you on unpaid suspension, it is important to be aware of whether you are an exempt or non-exempt employee and to check your employee handbook for policies regarding disciplinary procedures. If you are an exempt employee and/or there is no employee manual or it doesn’t reference unpaid suspension as a policy, you should speak with your Human Resources representative.
If you believe that the unpaid suspension was actually a form of discrimination, rather than discipline for misconduct, if may be advisable to consult with an experienced Labor and Employment attorney to determine your rights.
In regards to unemployment compensation, an unpaid suspension is a form of work separation, which is a condition for filing an unemployment claim. However, the success of the claim is dependent upon whether the suspension was due to the fault of the employee, as well as the length of the suspension.