TOP TIP: Investigatory Suspensions

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When confronted with a situation involving possible employee misconduct, many employers place the employee in question on a suspension while it conducts an investigation. Employees sometimes challenge the suspension as being an adverse employment action on which they can base a claim of discrimination or retaliation under federal employment laws, and it may be helpful for employers to establish up front that it is not. For more, click [LINK]here.

The recent case of Bellagio, LLC v. NLRB offers some guidance on this topic. In that case, the employee was accused of misconduct by a customer. He was summoned to a meeting with management, and invoked his right as a union member to have union representation at the meeting. When a union representative could not be found, the employee was placed on suspension pending investigation (SPI). He then filed an unfair labor practice charge with the National Labor Relations Board, claiming that his placement on suspension was unlawful retaliation for invoking his right to union representation.

The U.S. Court of Appeals for the D.C. Circuit found, however, that the suspension was not an adverse employment action. In so finding, the Court pointed to the employer’s SPI form that had been given to the employee, which states in relevant part:

You are being placed on Suspension Pending Investigation effective [date]. This is not a disciplinary action; it is a process that [the Company] utilizes to remove you from the work place in order to investigate a serious situation or policy infraction in which you may have been involved.

Upon the completion of the investigation process, one of the following things will occur:

  1.   You will be returned to work without disciplinary action and compensated for the scheduled shifts missed resulting from the suspension pending investigation . . . ; or
  2.   You will be returned to work with disciplinary action if warranted based on the outcome of the investigation and possibly no compensation; or
  3.   You will be separated from the Company if warranted based on the outcome of the investigation.
[Emphasis added by the Court].

Thus, employers using an investigatory suspension may wish to utilize a similar form – particularly the notice that the action is not disciplinary. Other information that could be incorporated into such a form would include logistical information, such as:

–          The need for the employee to be available for future interviews and, if the employer is unionized, the right of the employee to have union representation at such interviews. If the employee chooses not to attend such interviews, the Company will make a decision based on the available information.

–          Prohibiting the employee from coming to the work premises or accessing Company systems.

–          Prohibiting the employee from performing any work.

–          Requiring the employee to turn over keys or access cards, or other employer property in his/her possession.