HR Management & Compliance

Wage and Hour: Is It Legal to Suspend an Employee Without Pay as a Form of Discipline?

QUESTION: My company often sends employees home without pay for various offenses, such as egregious dress code violations, insubordination, and slacking off. Sometimes, the employee is told to return the next day, and sometimes the suspension runs for a few days or more while we investigate. I wouldn’t want anyone to know I’m asking, but is it legal for us to do this? — Anonymous

overtimeANSWER: Yes. It is perfectly legal to suspend an employee as a form of discipline. It should be considered the same way as any other form of discipline, such as demotion, salary reduction, or termination. That said, suspensions take many forms. The easy one is a suspension without pay for a definite number of days after the conduct has been investigated and the decision has been made to suspend the employee. The employer determines how many days the employee will be on unpaid suspension and informs him or her. Both the employer and the employee know exactly how long the person will be out and unpaid, and when that employee will return to work. Although this is obviously subject to challenge, as is any adverse action, it is a perfectly appropriate and legal form of discipline.

Another form of suspension occurs when the employer is convinced that the employee has engaged in conduct that requires immediate removal from the workplace pending an investigation that may or may not lead to termination. To avoid any problems, some employers will suspend an employee with pay until the final decision is made as to whether the person will be terminated. Because the employee is still being paid, the suspension likely will not create any legal problems while the ultimate determination is under consideration.

The third type of suspension occurs when an employer wants to remove the employee from the workplace immediately and investigate to determine whether termination is appropriate, but does not want to pay the employee during the suspension. Because termination is fairly likely in this situation, the employer wants to suspend the employee without pay until a quick investigation is completed, just in case there are any mitigating circumstances. The issue that arises in this scenario is whether the suspension is actually a termination, and thus, under Labor Code Section 201, the employee would be entitled to be paid all wages due at the time of suspension. And, because all wages were obviously not paid at the time of suspension, there is the question of whether waiting-time penalties could be awarded under Labor Code Section 203.

In this context, a suspension without pay for a short period of time most likely will not trigger waiting-time penalties under Section 203. When, however, the investigation drags on and there is no set time limit for the length of the suspension, Section 203 penalties could be awarded. Although there are no hard-and-fast rules, open-ended suspensions that last beyond the end of a pay period and appear to have little relation to the amount of time the investigation required may well be considered de facto terminations, triggering the potential for waiting-time penalties.

When an employer suspends an employee without pay pending an investigation, the best practice is to ensure that the investigation is conducted as quickly as possible and to set definite timelines for how long the suspension will last. If the investigation takes longer than expected, the suspension can be extended—but, again, with a definite end date. However, even under this scenario, if the amount of time the employee is on suspension bears little or no relationship to the actual amount of time spent on the investigation, the labor commissioner may well consider it to have been a termination and thus award Section 203 penalties.

Lloyd W. Aubry, Jr., Esq., former California labor commissioner, is of counsel at the San Francisco office of the law firm Morrison & Foerster, LLP.

64 thoughts on “Wage and Hour: Is It Legal to Suspend an Employee Without Pay as a Form of Discipline?”

  1. I’ve been on a Investigatory suspension since 5/25 without pay. I have not received any contact from my employer as to how long it will be, no contact at all. Is this legal? When can i consider it a termination and file unemployment? How long can a suspension last in CA? Am i entitled to pay under Section 203 penalties?

    1. I was asked to do a drug test by my employer for backing up the company car into a railroad wall while working, and ask to stay home till my result can come without suspension or termination. Do I get paid for the days I waited for?

  2. I’m dealing with a very horrible situation in which my employer has a very bad habit of taking her PMS or Menopause out on her partner (also her baby’s father), and the staff at work. She calls on our time off, yelling screaming and being an all out banshee.

    She harps and nags and complains about all sorts of things, expecting the work of a staff of 3 people to be done by a single, self-managed employee during their shift. No matter how much is done, how much we bust our butts, she yells and screams.

    Now when we’ve actually said, sorry, that wasn’t on my shift, that was so and so, and they’ve done the same… All when it should have been the work of another employee that needs to be hired she has hit the limit of crazy.

    My roommate is in a Labor dispute with the company, and agreed to a settlement as long as she promised not to mess with my hours, or fire me, explaining my disability. She agreed months ago.

    Now because of this “passing the blame” both my co-worker and I have been suspended without pay “until further notice” for the reasons listed:
    “blaming each other for not doing their work & acting immature”

    My disability is the fact that I have been diagnosed by the State of NV of being permanently childlike, never to grow beyond the age of 12 (mentally/socially), I’m a big kid. So this suspension is a slap in the face of my disability, and it’s a direct violation of the agreement she has with my roommate who has the $7,500 Labor Dispute with her, all one month before the date of the their court date to formally enter the settlement. She already paid him half the money of the settlement, is this her way of throwing in the towel? Do I have recourse?

  3. I ve been investigated and suspended at work, during restructuring processes without pay . And im home now with retrechment but the investigation is still on and i never recieve my salary and package, the investigation started on 25/09/2015 and my termination of contract was 30/09/2015 and from now they still busy with the case but im no longer working with them. I never get paid for my salary nd package

  4. Is it legal if the employee is suspended, but the employer sets a work load for the employee to be accomplished at home during suspension? thank you.

  5. Hello,

    I have been suspended from my job for 4 days now. I’m an at will employee and have had no official reason given to me as to why I’ve been suspended. I don’t know if I’m still being paid, I was not given an official reason why I was suspended, nor how long it will last. My regional manager suspended me, telling my manager who then informed me via text that “until further notice” I’m suspended from work. Is this legal? If I’m going to be fired, just fire me already. I’ve been told by my manager several times over the last 5 days that my regional was supposed to call me to discuss my suspension and why, but he never calls. I’ve been awaiting his call in vain for days. This follows an argument with a colleague but he wasn’t punished or suspended. I’m starting to feel targeted. In the meantime, I work on commission so I’m being denied income and I’m not going to earn enough money to make my rent this month. If they’d just fire me, I’d be more comfortable looking for another job. This limbo state of suspension is cruel and unusual in punishment.

  6. On jan 27 i went home on the clock forgetting and returned 1 hour later and clocked out. clearly a violation. my supervisor sent me home the next day. hearing nothing for two days i text my boss asking wheather i should show up for work or am i terminated. he responded I’m under investigation and the decision will be made february 2.have been at this company for 3 years with no disciplinary actions taken. does this sound like the proper protocols are being followed?

  7. am working as a security guard at a residential flat at hillbrow,there was a theft that took place and I didn’t notice that and I knock of duty during the day come police to arrest me for being suspected of involvement in this theft and I sleep at hilbrow police station for one night when I come out my company suspended me and a notice of hearing were given to me and the hearing were conducted by a private company and the results were not given to me but they force me to resign instead of giving me the outcomes of the hearing, they even shouted at me to resign but I cant, I asked them to give me the outcomes.

  8. So i was late today and it made it my 4th write up… meaning i get a 2 week suspension… but since it’s soring break they have moved my suspension to march th 28th and request me to still work my schedule since we are short handed…m my question is, is this legal? I am a waitress and this is not the first time this has happened

  9. is it legal for empolyee to suspend without pay and make employer work overtime without pay instead of being home and or keep overtime money from prior week to satisfie suspension

  10. my husband got 10 day suspension for now get this reason…. because it was his time to got o lunch and he closed his window and the witch that came up to his window didnt like it as he said,,oh im sorry im closed ,,you will have to go to the next window clerk so this hag wrote a complaint about it and this happened in nov 2015 and his lousy bosses are just now getting around to giving himthe suspension in april2016..in fact they said to him they are giving him the suspension but they will let him know when it will be. are you kidding me? is this legal? these jerks have done nothing but harrass him for yrs like this. i told him he could maybe file a lawsuit against them. he said the two women bosses sat him down and just gave it to him like you cant believe. i would like to go tell them off up one side and down the other. now he wants to retire early and by doing so we wont have great insurance and i have breast cancer and heart problems and he also has health issues,,we are screwed because of these god awful bosses that keep jerking his chain.

  11. Im a saps employee I was suspense for pending investigation while I was under training on 2011.investigation was completed on 2013.I was on suspension without pay.I was reinstated on year 2014 .according to record of our hr my pension fund start on 2015.I like to know if I deserve to be paid for all years I lost and my pension fund must not start from the year of 2011?

  12. What if the employer just writes up the employee and then places the employee on suspension and does not at all discuss how long, and doesn’t answer the phone when the-the employee calls to find out how long and the situation is being discussed with other co-workers by management and now there is a reputation. No set date to return, it has been a week and going on week two. No answer. No call.

  13. I have a situation where I was suspended upon investigation, I was not given a date to return, When I called to speak to someone to follow up on the date and to find out about the investigation there was no answer, for a whole week, I waited for a call, I was patient, And we are now in the second week and I finally called and got an answer from a higher up manager that handled the situation very nonchalant, and unprofessional, and He did not even know or remember why i was suspended I then had to take him through the whole situation again and then he said that I clearly broke policy and the only thing he could do is to give me a separation notice, the next day I went to the job to receive that notice, Only to learn that the shift manager never got word about me being fired, she said she didn’t want to jump the gun giving me a separation notice that after the higher up manager hung up the phone with me, he walked out. it is going on a completion of two weeks, I am hanging in the balance, unpaid and rent is due. missed out on two pay periods un paid and i am very confused. what to do now. going on week 3.

  14. Is it legal to get suspended over the phone and by a text ? Never called me in to talk to me nor signed any documents for my suspention? And my boss only texted me through phone my schedule and when i could be back to work… This just happened to me this past week i was suspened for missing a day that i was sick with pink eye on both eyes but i didnt have money to go to the Dr. And my boss and DM said they didnt care that if i didnt take a doctors excuse that i was going to be suspended and even though i sent them both the GM and DM pictures of how i had my eyes ? So i told the GM to go ahead and suspend me because i couldnt take them the Dr excuse because i had no money to go and pay a Dr visit… Can they do this?

  15. What happens if you are suspended under false pretenses and then you are cleared an can return back to work. Should you get back pay?

  16. A month ago i was suspended until further notice. I just got a phone call from a coworker that my employment has been terminated and i have been replace. I never had received a phone call or letter about such actions. Is this legal.

  17. I was working for a restaurant, they suspended me for 6 months, when the 6 months are up and i try to go back, if they say i cant come back can i sue them?

  18. I was asked to go home and wait a couple of days while we review your work performance I am a salery employee I worked for the company for 2 years without missing any days and never was a problem to my co worker team player always one day after working 14 hours and I was coming off the 3rd shift tired I made my first mistake in 2 years and they asked me to leave and wait until we call you we want to review you so I apologize and went home and I haven’t heard from them yet now I wonder as a salery employee do they still have to pay me

  19. Last Year 2015 a California employer suspended an employee without pay to conduct an investigation for an unknown number of days , the employer could not inform her of a date to return to work and made no contact with her at all All of this because of a misplaced item at a wedding event she was falsely accused No proof of heresay accusation. she was Innocent all along. At the end of the event, Many guests and family members of the bride scurried everywhere collecting numerous personal crystal items off each and every table throughout the ballroom. I feel i was being set up . The employer handled this situation inappropriately. I suffered defamation of character and loss of wages & work. I was discriminated against, singled out. I should also be entitled to additional monies under Section 203 Penalties On the day of suspension The employer should have determined and informed the employee of the number of days she will be on unpaid suspension to conduct the investigation . since no evidence was found She was declared innocent.so 3 weeks later, i arrive to return to work on the day & time as alerted and I go into Managers office and was presented for the first time a FINAL WARNING for MISCONDUCT. i was speechless i acknowledged that i received the notice but i am not authorizing the allegation. So i am excused to return to work as if nothing happened. Never received paid a dime. So UNFAIR. Now approx 7 months later i am being told we must part separate ways and was given a check for last 3 days that I worked… Nothing more.??!! please i am now unemployed and have a phone interview scheduled for tomorrow to discuss my unemployment reasons. I am begging for your guidance.

  20. As of two weeks ago, I was placed on suspension pending termination under alleged malconduct. My employer gave no definite date for end of suspensio . I was told I would receive a call from them the first week of suspension regarding it. I have yet to receive a call. From what I have heard, they have done this before, putting an employee on indefinite suspension without any contact. I’m in union so, it is difficult to fire an employee without actual reasoning. They put us on indefinite suspension and wait for us to quit. I’d like to know how legal this actually is and if I should be receiving pay for this time.

  21. If I was suspended 2 days without pay and 2 days later they want me to sign a write up is that legal shouldn’t it be only one

  22. Last Year 2015 a California employer suspended an employee without pay to conduct an investigation for an unknown number of days , the employer could not inform her of a date to return to work and made no contact with her at all All of this because of a misplaced item at a wedding event she was falsely accused No proof of heresay accusation. she was Innocent all along. At the end of the event, Many guests and family members of the bride scurried everywhere collecting numerous personal crystal items off each and every table throughout the ballroom. I feel i was being set up . The employer handled this situation inappropriately. I suffered defamation of character and loss of wages & work. I was discriminated against, singled out. I should also be entitled to additional monies under Section 203 Penalties On the day of suspension The employer should have determined and informed the employee of the number of days she will be on unpaid suspension to conduct the investigation . since no evidence was found She was declared innocent.so 3 weeks later, i arrive to return to work on the day & time as alerted and I go into Managers office and was presented for the first time a FINAL WARNING for MISCONDUCT. i was speechless i acknowledged that i received the notice but i am not authorizing the allegation. So i am excused to return to work as if nothing happened. Never received paid a dime. So UNFAIR. Now approx 7 months later i am being told we must part separate ways and was given a check for last 3 days that I worked… Nothing more.??!! please i am now unemployed and have a phone interview scheduled to discuss my unemployment reasons. I am begging for your guidance. Also i just noticed on the EDD pay scales that determine the amount i am awarded to be paid per week. The company stopped removing taxes from my payroll checks so it looks as if I did not work so my pay is lower than what it should be??
    help !!

    And furthermore, when I contacted our HR last year to discuss issues that I am having in the workplace. The HR Rep stated, “WELL I ONLY HANDLE THE CORPORATE ISSUES BUT I AM WILLING TO LISTEN TO YOUR ISSUES, DO YOU MIND IF I PUT YOU ON SPEAKER PHONE?” I was crying and could barely speak to share my issues but i did replay “WELL YES PLEASE` I DO NOT KNOW WHERE TO TURN, WHO TO TALK TO, PLEASE HELP ME! I AM BEING TREATED POORLY AND IGNORED AND BULLIED”… I did the best I could do explaining, I wish I would have recorded my voice sharing and how rude the HR Rep was to me. I even asked for a copy of my Personal File and she denied me and exclaimed, ” All that is kept in your file is exactly what you (I) have signed the Warnings only nothing Positive, No Commendations which i had plenty, and was never brought in for a EMPLOYEE REVIEW to discuss my job actions etc… I HAVE MANY ISSUES THAT I CAN NOT LET SIT AT THE WAYSIDE. ITS SO UNFAIR . DISCRIMINATION, BULLIED, ETC.

  23. So those people with floating holidays , unable to be taken do to a suspension with out pay , and suspended so long out tim termination may receive the pay and company a penalty for with holding and failing to pay.

    quote:

    The third type of suspension occurs when an employer wants to remove the employee from the workplace immediately and investigate to determine whether termination is appropriate, but does not want to pay the employee during the suspension. Because termination is fairly likely in this situation, the employer wants to suspend the employee without pay until a quick investigation is completed, just in case there are any mitigating circumstances. The issue that arises in this scenario is whether the suspension is actually a termination, and thus, under Labor Code Section 201, the employee would be entitled to be paid all wages due at the time of suspension. And, because all wages were obviously not paid at the time of suspension, there is the question of whether waiting-time penalties could be awarded under Labor Code Section 203.

  24. I heard if you are told to leave or go home in the middle of your shift you are entitled to received at least 4 hours of pay weather you worked it or not. Is this true? Is your employer by law suppose to pay you a minimum of 4 hours for that same day you were asked to go home?

  25. So i had personal problems going in outside of work and when I was at work I wasnt handling it very well. The told me to take a week off to figure out my problems outside of work. Then at the end of of that week I asked when I started working again and they told me that it was desided that they werw going to give me another week off! Which I had NO SAY in it what-so-ever. But I’m not the boss. Then at the end of that week i asked again when i eork snd they said not this week but they are only putting me on weekends….i found out a couple days ago that i was suspended. They never once even told me i was suspended. Someone else did. My voss claimed ge told me in persob when we were outside of work but i don’t recall that. My point of slk this is, is; are they aloud to susoend u without pay, and not tell you at first? And do you have to be at work or clocked in or anything when they suspend you. Is there papers or a form you have to sign? Im just a little confused.

  26. I am an hourly wage employee. I was suspended for 3 days without pay. can I use my Paid Time Off to feel in for those 3 days suspended?

  27. If my employer doesn’t notify me within 24 hours of the incident that happened 5 days before are they allowed to suspend me after the 5 days the day i tell me or is it illegal? Please help me

  28. So my boyfriend got a two week suspension and ibwas wandering after the two weeks he returns back to work can they fire him??

  29. My employer constantly calls me off when im scheduled to work. I always get sent home early. I also get told to wait to clock in, then eventually gets told to go home after about 4 hours. My girlfriend & i are the only two black people left at the job. We were promised that I’ll hours would be boosted do to people leaving. Am i being subjected to any racial mistreatment of any sort? Do i have rights? Am i getting treated unfairly? What do i do about my situation?

  30. One of my co workers sent a text to myself and the bodd that she was feeling kinda funny and needed some more sleep that she would be in later, the bosses response “K”, then a little bit goes by and she sends another text staring she is going to stay home because she well be no good to anyone, then two days go by and I call in ill because I had been up all night throwing up and my grandson as well and I got suspended for a week with a that that I may not get my bonus pay due on the 20th as that is the next pay date. Along with several text messages that are so de meaning and hurtful about bs, then another employee calls in sick on the following Monday and they are not suspended, wouldn’t this be discrimination? And shouldn’t I get pay while I was not allowed to return back to work and miss a full weeks pay because I was ill?

  31. I did work 4 hours at other store, because they need help, after work, the assistant manager wrote me the note to verify I work at her store for 4 hours with her signature so me can bring to my home store to clock in then her store will pay me 4 hours, next week I suppose to turn in my note but I forgot about that, late on I remember that note, try to find the note, could not find it, I let it go because my fault, then last week I clean up my son room, I found it. I want to get pay, so I went back to the store I worked hoping to see the Assistan manager the one signed the note for me, but she is not there, I just put the day today and fax to my home store to get pay, because one time I did turn late my work hours, the pay roll clerk told me I have to wait till the next pay roll because they can not go back, that why I did put the date I work for today, my manager found out about that, they suspended me for investigation. On the note, she forgot to put the date When I worked, so I call to find out the date I did work but I didn’t turn into get pay that day. Will they fire me? Hornestly l did work 100 days ago but just turned in today to get pay … I need your advice. I want to go back to work.. please help me!

  32. What happens if your manager sends you home and says they will call you the next day. The next day comes and they call to inform you to return to work 5 days later. They never tell you that your are suspended until 5 days later when you return to work that you were in fact suspended? In other words they never informed you that you were being suspended?

  33. Can my employer suspend me for 3 days without pay and still make me work those three days? I am on salary not sure if that makes a difference.

  34. Is it legal for your employer to charge you with theft for being a minute late comming back to work from your break

    1. no that is not a form of theft. they can give you a write up and dock your pay but they can’t bring charges of theft thats ludacris and sounds like a power trip. it won’t fly in court.

  35. If the employees failure is directly related to a none failure of the company’s equipment should they be suspended without pay?

  36. what happens if there is no HR at your work and was suspended with excuses and without a day to return is that legal

  37. I get that suspension in general is legal, but what about for overtime. Is it legal to punish an employee for overtime?

  38. I was told not to return to return to work yet last week after my supervisors met with me regarding equipment not working. No way whatsoever is there any proof the night visions batteries fell out while in my possession and was told my punishment was going to be in the search lobby full time until further notice. My capt stated they needed a female in the lobby anyway. I stood up for myself and told him he had never punished in any other employer that way and refused to take blame for the inoperable night vision. In a matter of a few hrs that night I had 3 meetings with these supervisors, that also included threats of termination in one of them.
    I was so upset and crying that capt and Lt. Told me I could go home that day if I needed to. I stayed for a little while but couldnt stop crying bc this incident was just one of many. The next day I was advised not to show up for work. For 5 days now no one can tell me why I’m oit of work, when I can come back, if I’m fired , nothing. They have yet to contact to me unless I ask them these questions and say they dont know anything. I havent been told I’m suspended …nothing at all. I work security at a nuclear site in SC. I don’t know what to and can’t stop freaking out. Any ideas from anyone ?

    1. Contact your local labor board (State) or go to the federal labor board website. The will have information pertaining to your rights. I also think that hey will have a way to seek counsel concerning your issues.

  39. I was suspended, put on Admin leave because i accidently put in the incorrect time for my missed clock in punches at work. They didn’t really tell me why i was being suspended until the day after i got suspended with no pay or date to return. At the investigation, they told me about the missed punches & howit looked like i was stealing time. I told them i wasn’t aware of, was an accident, had & still have been going through a hardship where ive been very distracted, wasn’t receiving the request to fix the punches til a week later & by then didnt remember the times or what happened on those day to why i missed the punch & just put the time i was scheduled for that day. They asked what i will do to make sure it didnt happen again. I told them I’d remember to clock in, if i forget & i receive a request for missed punch, i wont assume a time, i will look into more so that i will have an accurate time. Again i apologized & even offered to have them take the money out my check. This was on a Wednesday, its now Monday going on Tuesday & my regular scheduled work day & im still suspended. I dont know whats going on & again they didnt give me a date to return or how long the suspension would be & its been 7 days now. Ive emailes & text my managers & havent received any responses. Does this fall under labor law Section 203? Can anything be done?

  40. I have been suspended due to attendance. This was on a Wednesday. I was told to contact my Union Twp, they will call the companies HR and a meeting would be set. When the Union rep called HR explained that they have to wait for my files to come in which is only sent over one day a week, Tuesdays. Once they receive it they will set an appointment. So one week later from the day I was suspended, Wednesday. I called the Union rep again and he said that the HR would get back with us “hopefully by Friday” how long should I wait? How many excuses should I except? Now mind you, this HR Dept has a reputation of taking their time on most incidents, such as payroll, insurance, disability ect.

  41. i have been suspened for a randon urine test. I have a perscription for hydrocodone and my employer his it on file,but when I tested pos they suspended me while they send it to lad

  42. my father is working in apsrtc as a conductor .he is the heart patient thats y few months like 2 ,3 months he stop the duty. now depo manager suspend him with out any pay. hes working like 30 years in this department. the employer wt he do now for hes rights. plz i need ur help

  43. Here’s a scenario: Person A works for a company and he/she is finished for the day. Person B has a verbal confrontation with person A who is off duty also. Person B is a supervisor and suspends person A because of the confrontation. Which occurs off premises and after the work day. With out pay. How legal is that??

    1. Would that idea be an abuse of power with predjudice? And can the claimant, person A, get compensation for the unlawful suspension and abuse inflicted on person A? You know loss of pay and other incidentals?

  44. I was suspended false theft aleggations towards another co worker a friend of mine found a wallet she lost and because my friend did not confirm that she knew me from work.the reason she denied knowing me was because she did not feel the need to involve me in the situation.whats do you think will happen?

  45. So I was suspended over a false accusation of employee theft now the reason that this allegation is unique is because my friend and someone who picked me up that night from my shift found my co-workers wallet and returned it the next day without informing me my employers were suspicious of why my friend did not admit that she knew me when she returned the wallet and I was suspended over coincidental circumstances I have been suspended so far for 2 weeks and Counting what do you think my probability of receiving my position back is?

  46. If you work for a government entity, can that employer suspend an employee without pay, but yet require that the employee to still come to work and perform their regular duties without being paid?

  47. I just was wondering if it was leagal to be suspended for celebrating a football game on a open group chat having nothing to do with work seeing that I am the one who got suspended for that reason

  48. I was suspended for going to the restroom to check my stiches an menstrual. I was in the restroom for medical reasons due to just getting out the hospital 4 days earlier witch my employer had knowledge of. Like im confused!!! Can someone help me understand this.

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