Disciplinary suspension without pay of exempt employees.

BLC · May 2001

I am reviewing our disciplinary procedures policy which currently includes a disciplinary step that "an employee may be suspended, as disciplinary action, without pay, for a period not to exceed ten (10) working days". I remember reading something awhile back that docking exempt employees for disciplinary reasons implies that they are non-exempt. Is this so? Should I revise our policies to read "with or without pay" to address exempt salary situations?

Palbeck · May 2001

I am new to this forum and have the same basic question. We would like to use suspension as a disciplinary measure for an exempt employee and I have not been able to find any information as to whether this would create any issues. Looking forward to reading the responses.

HR2001 · June 2001

I believe you can suspend an exempt employee for a period of one week without pay. Anything less than a week could affect thier exempt status.

Margaret Morford · May 2001

Let me see if I can address both suspension questions. First, I believe that suspension is a legimate corrective action tool as long as it's used sparingly. I recommend using it in two situations. Use it when you think you are going to fire an employee, but need some breathing room for the supervisor to calm down and think about what the supervisor wants to do about the situation or you need time to review the facts of a serious company policy violation. I always train supervisors to suspend pending investigation. This most often happens when a employee is insubordinate. I train the supervisors to tell the employee he/she is suspended and is not to return to work until he/she hears back from the supervisor. This gives the supervisor time to think about what the supervisor wants to do. This suspension should not last longer than 24 hours. Make the decision and then notify the employee whether he/she is still employed. (See the previous answers in the Forum on insubordination to walk you through the exact process).

If there is some doubt about the facts and the infraction is serious, such as one employee claims another employee threatened to kill him/her, suspend the alleged threatener, pending investigation. Investigate quickly. If the allegation is false, pay the suspended employee for the time off because he/she didn't do what you suspended him/her for. If it's true and you decide to terminate, make the employee's last day worked the day you suspended him/her.

I would write into your policy a general suspension provision that says something like "In some cases, suspension may be appropriate." Make the provision general, but train your supervisors on specifics so that they know when to use it.

Never use suspension as a punishment for attendance problems. If you're already having trouble getting them to come to work, do not give them more days off as a punishment.

The second issue has to do with docking pay for exempt employees. You lose the exemption when you count hours on an exempt employee. It is essentially like treating them as if they are non-exempt employees when you dock them in less than whole day increments or make them make up specific hours missed. (There are several discussions of this in the Forum) As long as you dock in whole day increments, I think you are fine. Just don't suspend them for a half day and dock them a half a day of pay. Also, pay them for the full day that you suspend them regardless of whether you sent them home half way through the day.

If you have any questions, please do not hesitate to call me at 615-371-8200.

Margaret Morford
theHRedge

Margaret Morford
theHRedge

Hatchetman · May 2001

[font size="1" color="#FF0000"]LAST EDITED ON 05-31-01 AT 12:34PM (CST)[/font][p]Under FLSA, an exempt employee may only be suspended without pay (docked) for less than a workweek when he or she has violated a major safety rule (and that's what it must be). FLSA doesn't speak to any other suspension without pay. However, the concept of being able to suspend without pay for a full work week for ANY employer-determined suspendable act comes from the provision in FLSA that says that you don't have to pay the exempt's weekly salary for any week in which he or she performs NO work. Thus under that provison, suspensions of exempt employees for any "reason" can be in full work week increments. See 29CFR541.118(a) and (5).

DB · June 2001

So to suspend an exempt employee it has to be for a week at a time unless it's a major safety violation? Our Personnel Code (which covers non-union exempt and non-union nonexempt personnel) specifically mentions a "three work day suspension without pay". Can we do that for exempts? We are a city government in case that makes a difference.

Hatchetman · June 2001

I also work for a governmental entity. FLSA does apply to employees in the public sector -- that issue was FINALLY decided and ENFORCED as it applies to the western states of United States at least 10 years ago. And as I understand it public sector employers in the eastern US have been following FLSA requirements for the last "umteen trillion years."

I suspect your Personnel Code may have been written years and years ago and needs to be updated. You probably need to contact your city attorney or whoever advises your agency or governmental entity on labor matters.

Gar · June 2001

My understanding is that since exempt employees are paid a salary (weekly or monthly), you must take the entire salary or portions of it equal to weekly increments. But, be very, very careful because the employee's status can determine the penalty. For example, if a non-exempt employee committs an infraction that would usually result in let's say a 2 or 3 day suspension, an exempt employee who committs the same infraction would have to be suspended for a week.

Rockie · June 2001

I have learned that you have to be EXTREMELY careful in dealing with exempt employees and doing anything to alter their pay. You do not have to pay an exempt employee for a week in which no work is performed. Concerning disciplinary actions, you need to suspend the exempt employee for an entire week in order not to jeopardize their exempt status.

In addition, you need to spell this out in your handbook policies when talking about suspension. You may say "suspension may be up to three days for non-exempt or hourly employees." As long as you have this difference spelled out in some way, you will be fine. I also had to do this on my jury duty policy, etc. where you cannot dock an exempt employee when they serve on a jury.

Hope this helps.

Disciplinary suspension without pay of exempt employees.

Comments