California HR, Q&A

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


 

wage-hour

ANSWER: 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.

  • cee33

    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?

  • Matt

    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?

  • mxo

    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

  • Stef

    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.

  • Jules

    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.

  • edward eley

    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?

  • chris Sihlabelo

    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.

  • brittany greebe

    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

  • maria

    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

  • sandy stone

    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.

  • lsg

    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?

  • vegacore1

    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.

  • vegacore1

    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.

  • Adiana fuentes

    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?

  • Mac

    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?

  • miguel

    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.

  • isaiah

    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?

  • Isac

    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

  • Tricia

    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.

  • Patrick

    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.

  • San dr a

    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

  • Pat

    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.

  • rd

    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.

  • Mich

    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?

  • anonymous

    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.

  • Jan Phipps

    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?

  • Diane Burton

    I was surpend but have to go to a class for kids.it work so do it mean I still Have a job.

  • Christopher Gilfoy

    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

  • Majestic Cartright

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

  • Anton algee

    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?

  • Ann

    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?

  • Sally

    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!