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Are we liable for wages we didn’t pay while employee was waiting for drug test results?

by on
in Hiring,Human Resources

Q. We suspected an employee was using drugs, so we sent him to be tested. We told him he couldn’t work until the test came back in two days. The results were negative. Do we owe him wages for those two days?

A. Subject to any drug testing policy you might have, if the employee is nonexempt, you are not obligated to pay him for days he does not work. So, you don’t have to pay the employee for the two days that he did not report to work.

You should, however, be consistent, treating him the same way you have treated employees who have been suspended for other reasons.

If the employee is exempt, then you should pay him for the two days he was out. Exempt employees should be paid the same for each week in which they perform work, regardless of how many days they work.

The Fair Labor Standards Act would permit putting an exempt employee on an unpaid disciplinary suspension of one or more full days, imposed in good faith for an infraction of a workplace rule found in a written policy that applies to all employees. (29 C.F.R. § 541.602(b)(5)). Based on the facts you described, that exception to the salary basis rule does not seem to apply.

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