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By: Fred Geonetta August 17, 2018


WHAT IS MY RIGHT TO PAY DURING A SUSPENSION?

 * Employment Law

If you are legally employed by a California employer, you have extensive
employment rights guaranteed under both federal and state laws. Do the
employment laws allow an employer in this state to suspend you from your job
without pay?

Precisely what are your employment rights when it comes to suspensions and the
other “disciplinary” measures that California employers may take? Can a San
Francisco employer retaliation attorney help?


WHAT IS THE DEFINITION OF A WORKPLACE SUSPENSION?

First, let’s precisely define what a “suspension” from work is. Suspensions are
a period of time when an employer requires an employee to be away from the job
for a specific reason that is usually related to a disciplinary matter.

Suspensions take several forms. Some suspensions are paid, and some are not.
Some are for a precise length of time, but other suspensions are indefinite.



Many employers have policies that impose some type of discipline – such as a
suspension – on an employee who has not adhered to a particular rule or rules. A
suspension is basically the grown-up equivalent of making you sit in the corner
– and sometimes, without being paid.


BUT WHAT ABOUT YOU? CAN YOU BE SUSPENDED WITHOUT PAY?

Like so many legal questions, the answer to “Can you be suspended from your job
without pay?” is “It depends.” And the first thing it depends on is whether or
not you an “exempt” or a “non-exempt” employee is California.

The law in California spells out which employees in this state are exempted from
wage and hour laws – that is, employees for whom the basic wage and hour laws,
and the rules regarding suspensions and pay – don’t apply:

1. anyone who earns over fifty percent of their pay through commissions
2. anyone who earns over one-hundred-fifty percent of the minimum wage
3. executive, professional, and administrative employees
4. most computer software professionals
5. teachers who are working at private schools
6. registered nurses
7. local and government employees
8. surgeons and other physicians
9. employees of the University of California

Except for the employees who are in these categories, almost all other employees
in California are considered non-exempt employees.


CAN A NON-EXEMPT EMPLOYEE BE SUSPENDED WITHOUT PAY?

Here’s the rule regarding suspensions and non-exempt employees: An employer in
California has the legal right to suspend a non-exempt employee without pay for
a disciplinary reason or pending an investigation of an employee’s alleged
misconduct.



Some employers may opt to continue to pay a nonexempt employee during a pending
investigative suspension, and some employers may even provide back pay if an
investigation finds no wrongdoing by the employee, but employers are not legally
obliged to provide such payments.

California employers may or may not allow nonexempt employees who are suspended
without pay to use their vacation days in lieu of going entirely unpaid for the
length of the suspension, but employers in our state are not legally required to
make this option available, either.

However, exempt employees who are salaried may be suspended without pay only for
an employer’s complete seven-day workweek. For exempt employees in this state,
no salary deductions are allowed for one-day or partial workweek suspensions.


WHAT ARE THE RULES REGARDING UNPAID SUSPENSIONS?

For exempt employees, unpaid suspensions must be made in good faith and for
major workplace violations. The federal Fair Labor Standards Act allows unpaid
suspensions for on-the-job drug or alcohol use, sexual harassment, and other
violations of state or federal employment laws.

However, any suspension of an exempt employee in California regarding the
quantity or quality of that employee’s work is improper and may trigger legal
problems for an employer.

California employers may suspend exempt employees only in full-day increments,
and they must already have a written policy in place that specifically allows
for such disciplinary suspensions.

It is also inappropriate for an employer in this state to discipline an employee
for something vague like “having a negative attitude.” A workplace suspension
must be tied to a specific incident of workplace misconduct.


WHAT IS THE BEST STRATEGY IF AN EMPLOYER INVESTIGATES YOU?

An accused employee must try not to react emotionally, especially if an
accusation is fabricated or exaggerated. Employees in this situation must avoid
sending angry emails, making angry phone calls, or provoking any kind of
face-to-face confrontation.



Instead, if you believe that you have been illegally or unjustly suspended at
work, or if you are being illegally or unjustly paid, take your concerns –
immediately – to an employment rights attorney.

Whether or not an accusation against you is true, and whether or not a workplace
investigation is, in your estimate, conducted fairly, here’s the best strategy
for dealing with an investigation:

1. Cooperate fully with the workplace investigation.
2. Answer all questions frankly and honestly.
3. Resist the impulse to express anger or to “talk trash” about a manager or
colleague.


HOW DOES THE LAW PROTECT EMPLOYEES IN CALIFORNIA?

If you have grounds to bring legal action against an employer regarding a
suspension from your job, your employment rights attorney will explain your
legal rights and options and will recommend the best way to move forward.

You cannot be suspended from your job or denied pay for a reason that is
illegal, such as discrimination or retaliation.

The Civil Rights Act of 1964 prevents employers with fifteen or more employees
from discriminating on the basis of gender, race, religion, or national origin.

If your employer has only five to fourteen employees, California protects you
from workplace discrimination through the Fair Employment and Housing Act of
1959.


IF YOUR EMPLOYMENT RIGHTS ARE VIOLATED, WHERE CAN YOU TURN?

If you’re targeted for workplace discrimination – wrongly suspended, improperly
paid, or wrongly terminated – discuss your situation and rights at once with a
qualified employment discrimination attorney.

There’s not much in life that’s more important than your employment. It’s what
lets you provide for your family and meet your obligations and responsibilities.

If your job or the pay you receive is threatened in any way, or if you are a
victim of illegal discrimination, harassment, or retaliation, do not be
disheartened or intimidated.



In California, if your employment rights have been violated by your employer,
the law is on your side.

If you are dealing with discrimination, retaliation, harassment, or a
pay-related issue that needs to be resolved, get the legal advice and
representation you need – and do it at once. That is your right.


By: Fred Geonetta



Frederick J. Geonetta is a graduate of the University of California, Hastings
College of Law. His legal practice is entirely devoted to litigation. Mr.
Geonetta has spent the past 25 years in private practice representing both
plaintiffs and defendants who have been harmed or wronged by the actions of
others or who have been falsely accused of causing harm to others. He represents
clients across the U.S. and international clients who seek U.S. legal advice or
representation.




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   ▼
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     ▼
     * Employment Law
       ▼
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       ▼
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       ▼
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       ▼
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