Ask the Expert: No Pay for Suspended Employee?

An employee was sent home for a company policy violation. Can the supervisor send her home for a week with the employee’s option to use her PTO otherwise the week will be without pay? There haven’t been any written warnings nor do we have this discipline action in any handbook.

Thank you for your inquiry regarding a full-week unpaid suspension for a company policy violation.

There are some factors for employers to consider in the situation you describe, including wage and hour implications and the employer’s policies and practices.

Wage and hour. Under the Fair Labor Standards Act (FLSA), an employer is only required to pay nonexempt employees for the hours they work. So, a disciplinary suspension generally will not have FLSA implications for a nonexempt employee.

Deductions from pay of exempt employees may be made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules. These suspensions must be imposed under a written policy that applies to all employees.

So, for example, an employer may suspend an exempt employee without pay for three days for violating a generally applicable written policy prohibiting sexual harassment. Similarly, an employer may suspend an exempt employee without pay for twelve days for violating a generally applicable written policy prohibiting workplace violence. Note: A written policy is not required if an unpaid suspension is for a full week.

Policies and practices. To avoid claims of unfair treatment or discrimination, an employer should be sure the suspension is consistent with its policies and past practices (i.e., the employee is not being treated more harshly than other employees who have committed similar violations).