Paid suspensions are safer than unpaid ones

When you learn that an employee may have committed a crime or other offense that’s serious enough to warrant termination, you’ll naturally want to investigate before making a final decision. But do you suspend the employee in the meantime?

If you do, make sure the employee continues to be paid and continues to receive all his or her benefits. Then, move the investigation along as quickly as possible. Otherwise, you run the risk that the employee might sue, alleging some sort of discrimination and pointing to the suspension as an adverse employment action.

Recent case: The Food and Drug Administration (FDA) suspended employee Gregson Joseph after he was arrested for allegedly stabbing his girlfriend. A week earlier, the agency received an anonymous tip suggesting Joseph was using his government car to buy cocaine.

The FDA suspended Joseph with full pay and began an investigation. It continued the investigation even after the criminal charges were dropped. Five months later, it allowed Joseph to return to work after concluding that he had done nothing wrong.

Joseph sued, alleging race discrimination. But the court dismissed his case, saying a paid suspension pending investigation wasn’t an adverse employment decision.

The court hinted that it might have ruled differently if the FDA had made any change in Joseph’s benefits during the suspension. (Joseph v. Leavitt, No. 05-3348, 2nd Cir., 2006)  

Investigations: 4 tips

  1. If no investigation is necessary (for example, an employee is seen physically harming a co-worker), terminate the employee.
  2. If you need more information, suspend the employee with pay and benefits, then promptly begin the investigation.
  3. Set tight time frames for completing the investigation. Don’t delay unnecessarily.
  4. If criminal charges are pending, you don’t have to wait until the case is resolved. Go ahead and take action if you have independent evidence. Note: If the criminal charges are dropped, you don’t have to drop the investigation.