Any legal limits on suspension?

kdspa · July 2006

To my knowledge, there are no legal limits on how long you can suspend an employee you are disciplining. Is that correct?

We are changing a policy that previously said CMV Drivers who have their license suspended or who are dropped from our insurance because of too many violations will be fired. The President would like to change that to a suspension. The question I've been asked is, "is there any legal reason why we can't suspend an employee for the length of their license suspension?"

I don't think there is, but I wanted to see if anyone else is aware of something before I respond.

Thanks!

marc · July 2006

I can't answer your question, but I would also want to know what kind of exposure the company has for an indefinitely suspended EE vs an ex-EE.

As you know, there is a lawyer out there for everyone. I can't think of many scenarios that might demonstrate that exposure, but what if the EE with a suspended license is driving his/her car and wearing your company's uniform, gets in an accident and you are subsequently sued with some sort of negligence theory?

Ok, ok - probably a wild idea that a lawyer would sue someone on such a thin line of reasoning - but others might think of more concrete examples of possible exposure.

The EE might be denied UI filing rights, and that could be detrimental also.

It just seems unreasonable to suspend someone in this manner.

HRCalico · July 2006

I haven't had any direct experience in this, but at a previous job (before I worked there), there was an exempt employee who had his license suspended for a DUI. He did a fair amount of traveling around the state in the course of his job. I believe they suspended him from work for the 60 days his license was suspended.

I can see Marc's point if the license was suspended indefinitely, and I am not familiar with the DMV laws to know how they work. I would say if someone had a license suspended more than once, I'd probably show them the door because they ought not be driving for you.

atrimble · July 2006

I'm not aware of any legal points on how long a suspension can be, but I'd keep an eye on your benefits, including work comp and health/dental insurance and maybe even retirement. If one of our employees is non-active (not actively working) and isn't getting a paycheck (for example, s/he's not in a Paid suspension or using Paid Time Off) for more than 30 days, then insurance and retirement providers both want to know if this has now become a benefit event and whether some of their provisions or requirements ought to be kicking in (like COBRA, for reduction of hours, or suspending an IRS-mandated pension loan repayment).

It seems to me that 30 days is the point in time that matters most to the folks that regulate employment from the sidelines.

HRQ · July 2006

Consider precedent. You might happily allow a 6 month suspension for drivers you "like" but then you are stuck allowing the same thing for those you wish would just go away.

All our employees are required to carry a current security clearance card. (criminal history review processed through Dept of Public Safety) Occasionally a card will be denied or revoked based on the employee's criminal history. The employee can appeal the decision and sometimes will get their card reinstated.

In this situation, we give the employee 30 days unpaid suspension to file an appeal. If the appeal is not resolved favorably within the 30 days we terminate their employment. If they favorably resolve their appeal on the 31st day, for example, we happily rehire them (if we want them and the job is still available) and don't rehire them if we don't want them.

We document the discussion, including that the 30 day suspension is unpaid, and that we do not guarantee their job (or specific schedule, pay, etc.) will be available, even if their appeal is approved.

bcolton · August 2006

I am with some of the others in that it does not appear to be a good idea.

First you are setting a practice, what if there are three drunk driving convictions and you have to reinstate that driver after 6 months. You reinstate the driver, he has an accident on the job and kills someone while driving,. I can just imagine both the publicity and the liability.

As to the actual question, I am not aware of any limits to an unpaid suspension.

mwild31 · August 2006

Hi KDSPA

I'm curious, what would a suspension accomplish? If the employee has had their license suspended, they can't drive until they get it back. If the employee has too many driving violations, why would your company want them to drive THEIR vehicles? I'm just not sure what suspension would do here. It sounds like your President would like the option of having the person stay employed with the company. Maybe your policy should talk about a mandatory reassignment to XYZ job (that doesn't include driving)? Maybe it would mean less pay, if the company needed to reassign the employee?

Jeez, it seems to me that if you hire someone to drive and they can't because of numerous driving violations or a suspended license, you find someone else to do the job. I'm not quite sure why he would not see it in this same manner...

marc · August 2006

Good summation Mandy -

By the way - good to see you post, it's been a while hasn't it?

mwild31 · August 2006

Hi marc - yep, it's been awhile since I've had any time to look at the site, let alone post. x:-)

marc · August 2006

It's your own fault. You know what they say: "If you want something done, give it to a busy person."

For some reason, your bosses think they can keep you so busy that you have no time to post.

What's up with that?

kdspa · August 2006

I concur. We don't want unsafe drivers behind the wheel of our trucks. I'm also concerned that suspending someone for 3 or 6 months is a liability and impractical, because the reality is, in 6 months the employee is going to find a different job but we were liable for him/her in some ways during that time. If the end result is separation, it just seems "cleaner" to terminate.

I think the reason he wants to change this policy is that we are a small company and we have several employees who do their routine jobs and who also drive for us occasionally. (We employ chemists who process hazardous waste and often those same chemists go to customer sites to pick up waste.) He's afraid that an employee who only drives on a part-time basis but is valuable in his/her other duties will get automatically terminated for license suspension/being dropped from our insurance. It's also a political thing around here because employees feel it's unfair that they can be dropped from our insurance coverage for personal infractions in addition to infractions committed in our vehicles.

As it stands now, the policy still says "will be subject to discipline, up to and including termination."

Brother Bluto · August 2006

So, if I understand this correctly, your boss wants to keep the folks on board because they serve more than one purpose - if they can't drive they can do something else. I think if you have the ability to do that within your company then it's probably a good idea to retain those folks. Conversely, if the main job duty is driver and the employee had a suspended license you really don't have a choice in the decision as they cannot perform the essential functions of their job. I would not keep them on the books and terminate immediately unless you have some type of program that they must go through while they are on suspension. If there's no program, let them go. There's no obligation here to accommodate in my opinion. The other employee's that are lab folks 75-85% of the time and "may travel up to 25%" should have their driving responsibilities placed on suspension for said period of time. If you have any type of bonus or incentive plan, you could make your policy so that a person on suspension or in a written warning stage for any type of discipline is not eligible for the bonus/incentive. The ee is not able to perform all their duties, so there should be some adjustment in compensation, but not their regular pay. Otherwise, you may have "positive punishment". In other words, getting your license suspended means that you don't have to perform one of your job duties and you get to keep your pay doesn't send the right message. (I've been at work since 5:30am, so sorry if I'm rambling.)

Any legal limits on suspension?

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