Suspend an Employee

You might want to suspend an employee to discipline them, or you might need to suspend them so you can perform an investigation. Whatever the situation, you should carefully document any investigation and your reasons for the suspension. Decide whether to pay the employee during the suspension, which is a complicated decision, and seek legal advice if necessary.

Steps

Protecting Yourself from a Lawsuit

1. Investigate complaints. Let’s say someone complains that a supervisor assaulted them. You shouldn’t immediately suspend the supervisor since you don’t know what has happened. Perform at least a preliminary investigation into the allegations.
   • Meet with the person making the complaint. They might have complained by email or to your secretary, but you need to meet them in person. Go over the substance of their complaint to check whether it is plausible on its face.
2. Read your policy. Ideally, you have a policy in place that allows you to suspend an employee. Take out your policy and read it so that you understand it. If you don’t follow your policy, you might be sued for discrimination.
   • You might not have a policy, in which case you should tread carefully! In the U.S., most employment is at will, and you can suspend an employee at any time. However, you want to protect yourself legally.
3. Consult with an attorney. Wrongful termination lawsuits are expensive, so you need to make sure the suspension is legal. Every country and state has its own labor laws, so there’s no “one size fits all” approach to employee suspensions. For example, labor laws in the U.S., U.K., and Australia are very different from each other. Contact your Choose a Lawyer for Your Business to discuss the specifics of your situation and what the law requires.
   • Get a referral to an attorney if you don’t already have one. Contact your nearest bar association and ask for someone who specializes in labor and employment issues.
   • Talk openly with your lawyer about what you want to do. For example, you might want to fire the employee. Your lawyer needs to know that since it could affect what actions you take.
4. Consider alternatives to suspension. Fully explore whether you can keep the employee working without suspending them. This might be the best choice. You avoid any possibility of a lawsuit, and your employee can still contribute to the business.
   • For example, you might be able to move the employee to a different department or let them work from home. This might be ideal if an employee has been accused of sexual harassment but you need to perform an investigation.
5. Identify when suspension is appropriate. Suspension is a pretty dramatic remedy, so seriously consider whether it is appropriate. For example, most employers suspend in the following situations:
   • The employee has broken a written policy and the suspension is a form of punishment.
   • You need to investigate allegations against the employee, and you’re afraid they may destroy evidence if they stay at work or be disruptive.
   • Relationships between employees have broken down and you need to keep them apart.

Notifying the Employee of the Suspension

1. Set the length of the suspension. Avoid suspending the employee indefinitely, since that too closely resembles a dismissal. In fact, try to suspend them for as short a length of time as possible.
   • In the U.S., you can’t suspend someone for half a day. Instead, federal law requires that you suspend someone for at least a full day.
2. Choose whether to pay the employee or not. You can certainly suspend someone without paying them. However, it might not be the best choice, depending on the circumstances. Consider the following:
   • Your state law might say all wages are due at the time of termination. Depending on how long your investigation lasts, the suspension could legally qualify as a termination. In this situation, you might be sued for unpaid wages if you ultimately fire the employee. To protect yourself, you might want to pay wages during the suspension, but you should talk about this with your lawyer.
   • However, you can avoid paying if you have a contractual right not to pay them. Look at your employment contract.
3. Check if the employee is an exempt employee. In the U.S., an employee is exempt if they are paid a salary of at least $455 a week and meets other requirements. You need to be careful about suspending an exempt employee. You run the risk of converting the employee to a non-exempt employee, which means you might need to pay overtime.
   • You can suspend an exempt employee without pay for serious infractions, such as allegations of sexual harassment, workplace violence, drug/alcohol abuse, or violations of the law. However, you should pay the employee if you suspend for minor issues, like poor attendance or attitude.
4. Write a letter. You might think it’s easiest just to tell the employee they’re suspended. However, you need to protect yourself as an employer. Write a letter in which you explain the key terms of the suspension, such as the following:
   • Duration. Let them know the date they can return to work. Don’t write, “You’re suspended for a week” since no one knows when the week will end. Instead, write, “You are suspended immediately and may return to work on June 6, 2017.”
   • Whether the suspension is a disciplinary action. You might need to suspend someone so you can perform a more thorough investigation. In this situation, clarify that the suspension isn’t a disciplinary act.
   • Employee obligations. You might want the employee to remain available so you can call them during the workweek. You might also prohibit them from calling other employees during their suspension.
5. Tell your employee in person. Meet with them in private. Ask them to come to your office and set aside enough time so you won’t be rushed or interrupted. Tell the employee what they’ve done wrong and that you are suspending them.
   • Be respectful. You can expect the employee to be upset, so de-escalate the situation as much as possible. Avoid raising your voice or making aggressive gestures.
   • Also listen to what the employee says. They might know they’re struggling at work. For example, they could have problems at home. Now is the time to recommend that they contact the employee assistance program to get help with home problems.
6. Take notes about the meeting. Document what each person said and put your notes in the personnel file. Attach the notes to a copy of the letter you gave the employee.
7. Maintain confidentiality. You might need to let other employees know about the suspension. Be careful what you say. You don’t want to give the impression that you’ve found the person guilty if you’re still performing an investigation.
   • For example, you can tell other team members that there have been complaints about the employee. Clarify that you’re only investigating and don’t know whether they are true or not.
   • However, keep the substance of the complaints to yourself. Don't say, "Jillian has accused Jeff of sexual harassment."

Developing a Disciplinary Policy

1. Draft a code of conduct. You need to tell employees what behavior is acceptable and unacceptable. Get as detailed as you want. For example, you might want to prohibit personal phone calls at work. If so, your code of conduct should state, “No personal calls are allowed at work without a supervisor’s permission.”
   • Also include general language about the values your business will uphold. For example, you probably want to uphold integrity, honesty, and teamwork.
2. Set up a disciplinary process. You must follow the same disciplinary process for every employee, so put it in writing. This will protect you from claims of discrimination. Remember to include only the steps you intend to take.
3. Analyze the benefits of a progressive disciplinary system. Some disciplinary systems are “progressive,” meaning you start out with a verbal warning and increase the punishments for each additional infraction. Progressive disciplinary systems have some benefits and drawbacks. You should consider each.
   • For example, one benefit is transparency. Employees know exactly what will happen if they commit misconduct.
   • A progressive system also gives employees a chance to improve their performance.
   • One drawback is that you might be tied to the system whether you want to follow it or not.
   • Progressive disciplinary systems also require quite a bit of paperwork.
4. Create the discipline hierarchy. If you choose to use a progressive disciplinary system, you need to create a sequence of punishments, beginning with the least serious. Consider using the following steps:
   • First offense: oral warning. Meet with the employee and advise them how to change their conduct.
   • Second offense: written warning. Follow up your coaching and set a deadline for employee improvement.
   • Third offense: suspension. Let the employee come up with a plan for improving their performance while out on suspension. You can review it before they start working again.
   • Fourth offense: termination. When an employee can’t improve their performance, suspension is appropriate. One benefit of the progressive disciplinary system is that termination shouldn’t be a surprise to the employee.
5. Exclude certain behaviors from progressive discipline. Some actions are so destructive that you might want to skip giving a verbal warning and go immediately to suspension or termination. Identify what behaviors will be treated differently, such as the following:
   • embezzlement
   • theft
   • violence on company property
   • bullying or harassment (including sexual harassment)
   • disclosing trade secrets and other confidential information
   • insubordination
   • lying on a job application
6. Show your policy to a lawyer. Ask the lawyer if anything is missing. Your lawyer can also help you assess the strengths and weaknesses of your chosen disciplinary process. For example, if you choose a progressive disciplinary system, then you might change the “at will” status of your employees. Consider all of your options.
   • Meet with your lawyer ahead of time if you don’t know what kind of disciplinary system you want.
7. Publish the final policy in your employee handbook. Remember to include cautionary language that you will use the disciplinary procedures as guidance. However, you still reserve the right to modify the policy in the future.
   • Also clarify that the disciplinary system doesn’t change the “at will” relationship.

Sources and Citations

See also

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• Identify Workplace Bullying
• Handle Troublemakers at Work
• Deal with a Passive‐Aggressive Employee
• Cope With an Arrogant Co Worker
• Build Bridges With a Co Worker You Don't Like

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