Court: Indefinite suspension same as firing
Don’t think that simply suspending someone without pay while you investigate alleged wrongdoing will fly.
If the suspension drags on without some sort of resolution, the employee can sue, alleging he or she was actually fired. There’s no need for him to wait until the employer finally decides what to do.
Recent case: Michael, who is black, was a salesperson at Saks Fifth Avenue in Manhattan. When a customer said she had forgotten her store credit card, Michael claims he followed protocol by looking up her account number and seeing her identification. He then processed a charge for several pairs of expensive designer shoes. Another Saks salesperson, a white woman, allegedly helped the same customer make purchases.
It turned out that the customer didn’t have a Saks account. Loss prevention concluded Michael had been involved in an alleged fraud and referred the case to the police. Michael was suspended without pay pending the outcome of the criminal case. A few months later, criminal charges were dismissed.
Michael asked for reinstatement, but received no answer. Then, more than 10 months after his suspension, Michael moved on to a new job.
However, he sued, alleging that he had been constructively discharged and that he was the victim of race discrimination since his white co-worker was never suspended or criminally charged.
The court said his case could go forward. It said a short suspension pending an investigation is fine, but when the suspension drags on with no end in sight, that is akin to being fired. (Bright-Assante v. Saks & Company, SD NY, 2017)
Final note: Always treat co-workers accused of the same offense equally. If you decide not to punish one, document exactly why she’s being treated more leniently than her co-worker.