As a human resources professional, I have suspended employees. It didn’t happen very often, but it did happen. Because it wasn’t a regular occurrence, I was extra cautious to make sure that it was handled properly. So I can understand how difficult it must be for the employee – they don’t know what to do. That’s what today’s reader is trying to figure out.
Hi. I’ve been suspended from work for four months. To date, I haven’t been scheduled for the investigatory meeting.
There has been lack of communication and correspondence. I’ve received no further details regarding evidence or witnesses except what I was briefly told on the day of suspension. According to the policy in the employee handbook, I should have received a reply. I sent an appeal of the suspension and haven’t received a response.
Is there something I can do? This is causing me extreme physical and mental health problems. Have my employer and HR failed me? Please help! Thanks.
I don’t have to tell you that there are always two sides to every story and, obviously, we don’t know all the details in this situation. So, we can’t answer direct questions. But there are some things that we can talk about when it comes to suspensions and investigations.
To help us understand more, please welcome Marc Alifanz, principal at Four Peaks Employment Advisors. Marc and I are connected on LinkedIn and I’ve noticed that he writes super helpful stuff so I asked him if he would assist. Thankfully, he said yes. Even though Marc is an attorney, please remember that his comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have particular detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Marc, I’ve received a few reader questions lately about suspensions. I’ve always viewed them as a “last resort” option. What is a suspension and why would a company suspend an employee?
[Alifanz] Suspensions are a period of time where an employee is required by the employer to be out of work for some specific reason. Suspensions can take all sorts of different forms. Some are paid; most are not. Some are for a defined period of time, while others are not.
While there are many different reasons an employee may be placed on suspension, most suspensions fall under one of two categories:
- As a punishment for violating a work rule; and
- As in our question above, time off while the employer investigates an alleged serious violation of company policy.
Suspension as punishment is generally straightforward. Often companies will have policies that dictate a failure to follow certain rules or workplace norms will result in some form of discipline. It could be a counseling or a written warning, but as the offense increases in severity, it can also take the form of a suspension without pay, or a termination of employment. The suspension in this case is basically the workplace equivalent of sending a child to their room to ‘think about what they’ve done.’ And, not get paid for time they’d otherwise be working.
Investigation suspensions are a bit more open-ended. Let’s use a brief example: Employee in a machine shop is accused of violating a known and very serious safety rule. The employee denies it. At this early stage, we don’t know if there are any witnesses or other evidence that will help us determine if she did it or not. But, importantly, if she DID do it, we wouldn’t want her working there anymore, and don’t want to take the risk of having another incident happen. So in this case, I’d recommend a suspension pending an investigation. Once complete, and we form our conclusions, we bring the employee back, or not.
And one last note: Suspensions for investigations are generally unpaid. But I will often advise clients to keep the investigation short, and if the allegations are unsubstantiated, to pay the employee for the lost time.
The reader talks about non-responsiveness after being suspended. That could be the case here, but we don’t know for sure. When it comes to investigations, can managers or even HR be held personally liable if they fail to handle an investigation properly?
[Alifanz] Let’s get all nerdy and Latin-y for a moment. You ask about personal liability. Personal liability is different from the company’s liability. By that I mean, a company’s liability is much easier to establish than an individual’s. That’s because of a concept called respondeat superior – literally translated as ‘let the master answer.’ Essentially, this concept means that an employer is responsible for the acts of its agent that occur in furthering the work of the employer.
So, in the situation of investigations, unless the manager or HR has acted in a way clearly outside the scope of their employment (rare), it is extremely unlikely that they can be held personally liable for failing to administer an investigation properly. Two quick caveats:
- This does not necessarily mean that the employer itself will be immune from liability for botching an investigation, though I’d say it’s rare.
- This also does not mean that the individual manager won’t be named in the lawsuit. But don’t fret! This is often done by plaintiffs for procedural reasons to keep cases in a certain court system that they find advantageous. While I can’t say it never happens, I have personally never had a case in the employment context where an individual defendant was found personally liable.
The reader note also mentions the employee handbook. Should handbooks include disciplinary processes? Why or why not?
[Alifanz] Traditionally, handbooks have been viewed as laying out all the rules and regulations of an employer, and as such, they would go into great detail regarding disciplinary processes. While many employers prefer that, and still have that (which is fine!), many are moving toward handbooks that are as much about defining company culture as they are about rules.
Personally, I’m not a fan of handbooks that outline on every page all the ways an employee can be fired. It’s not engaging for employees, and puts them in fear from day one. I prefer handbooks that address discipline in one spot with a catch-all. That catch-all may be light on detail or very specific, depending on the company’s needs. I’m generally fine with it so long as:
- They apply the policy consistently; and
- They write it in such a way that it gives them some wiggle room, as I’ve found over time that rules and reality don’t necessary always work well together.
We don’t know if the employee has been suspended with or without pay. In my experience, employees have been suspended for days (not months). If the employee isn’t receiving pay, this could cause a financial hardship. Do employees have any options? If so, what are they?
[Alifanz] Well, unless the policy specifically discussed the employee’s rights in this regard, which most won’t, the employee’s options will tend to be limited. If the suspension goes on endlessly, they may want to get searching for a new job.
That said, all employers should try to allocate sufficient resources (and I know this is hard) to investigate serious incidents quickly and efficiently, so that employees aren’t off work for more than a week or two just sitting in limbo. Sometimes it can be hard to move quickly given limited availability of witnesses, but it’s better for everyone involved when you wrap up your investigation quickly.
The employee mentions physical and mental health problems. Again, we don’t know the specifics, but can something like this expose the company to additional liability?
[Alifanz] In very limited circumstances, it could. Generally speaking, anyone placed on suspension is going to feel some amount of emotional distress, whether they committed the act or not. And if the suspension itself was done lawfully, any emotional distress that comes from it will generally not be something that exposes the company to liability.
Off the top of my head, I can think of two kinds of examples where it might:
- Where the suspension itself occurs as the result of some form of illegal discrimination. If, for example, an employee can credibly claim that the employer only suspended him because of his protected class, like race, then the suspension itself could be actionable. In that circumstance, the employee could potentially receive compensation for the emotional distress that occurred as a result of the investigation.
- If an individual levies an outrageous and untrue claim against the employee – especially as part of a campaign of hostility against the employee – resulting in the employee’s suspension, that individual or the company could be subject to a claim for Intentional Infliction of Emotional Distress (IIED). IIED claims are often brought as add-ons in litigation, but the standard required to find liability is so high that they are rarely successful.
A HUGE thanks to Marc for sharing his experience with us. Be sure to check out Marc’s Hostile Work Environment Podcast.
Employee suspensions are not an action that should be taken lightly. Companies need to make sure they are handling the matter properly, both from a legal perspective and from a respect standpoint.
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