HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Disciplinary Suspensions for Exempt Employees Q&A
November 20, 2007, Volume 9, No. 47
Published by Personnel Policy Service, Inc.
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK’S E-TIP: Disciplinary Suspensions for Exempt Employees Q&A The revised FLSA regulations now allow you to dock exempt employee pay for certain full-day disciplinary suspensions. But, you must have a policy in place before you can operate under this rule. |
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THIS WEEK’S E-TIP: Disciplinary Suspensions for Exempt
Employees Q&A Q: I recall hearing that the Fair Labor Standards Act (FLSA) exempt regulations now allow, in some circumstances, the imposition of unpaid administrative leave of less than a week for exempt employees. Would a major HIPAA violation be considered serious enough to warrant such an action? A: You are correct that 2004 amendments to the FLSA exemption regulations (free report download) allow employers to impose disciplinary suspensions of at least a full day, and less than a full week, on exempt employees in certain limited circumstances. (Exempt employees are those who are exempt from the minimum wage and overtime regulations of the FLSA.) Under the revised regulations, which took effect in August 2004 and are found in 29 C.F.R. §541.602(b)(5), an exempt employee can be suspended without pay for one or more full days as disciplinary action imposed in good faith for workplace conduct rule infractions. The comments to the final rule point out that the term “workplace conduct” covers only inappropriate conduct, including harassment, violence, drug or alcohol violations, and violations of state or federal laws. The term does not cover performance or attendance issues. So, while the Health Insurance Portability and Accountability Act (HIPAA) is not specifically used as an example, it is possible that a violation of HIPAA (or any other federal law) would meet the criteria. Unfortunately, this portion of the regulations has not been litigated, so there are no cases or Department of Labor (DOL) opinion letters interpreting what is “workplace conduct.” Accordingly, it would be prudent to consult an attorney or the DOL for an opinion on this matter. |
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Note, too, that in order to impose the disciplinary suspension, you also
must have a written policy on suspensions (free policy download) in place that is applied to all employees. The comments to the final rule indicate that the fact that the policy must apply to all employees does not preclude you from making case-by case disciplinary determinations. Comments to the rule also shed light on the requirement that the policy be in writing. The policy does not have to include an exhaustive list of specific violations that could result in a suspension, or even a “definitive declaration” of when a suspension would be imposed. Rather, the written policy only has to put employees on notice that they could be subject to an unpaid disciplinary suspension. Of course, you always can suspend the exempt employee for less than a week with pay, or for a full week without pay. Most employees understand that any sort of suspension is very serious discipline and that the next step in the process usually is termination. |
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on CD can find more information on exempt employees and unpaid suspensions in Disciplinary Procedure, Chapter 808, note 17, and a model policy statement allowing suspension of exempt employees in Disciplinary Procedure, Chapter 808, Comment 2(c). Not a subscriber? If you would like to order one of our policy chapters, go to: http://www.hrpolicyanswers.com. If you have any questions, please call us at 1-800-437-3735. We'll be happy to help you. |
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