Human Resource Blog

Thanks for posting such an interesting question! Please feel free to weigh in with comments on any issues concerning military employment on the site!

Yes, it is normal and legal to suspend a salaried employee without pay. In fact, it is considered a best practice in the HR field, as part of a progressive discipline program. Under federal law (and in every state with the possible exception of California) a salaried exempt employee who does no work for the day, can legitimately have his or her salary for the day withheld. (Several states specifically allow this type of discipline, under state law.)

This might seem like a reprieve, but suspended employees seldom see it that way. For one thing, few employees are in a financial position to lose 3 to 10 days pay, with no consequences. Second, it gives the employee a taste of what being unemployed would be like. Suspension without pay is normally the next-to-last disciplinary step. Usually, an employee has received several written warnings prior to the suspension. If the employee commits the same infraction again, he or she is terminated. Even an employee who might otherwise enjoy 3 extra days off does not enjoy 3 days spent contemplating job loss.

Suspensions without pay normally last 3 days, but up to 10 days is not unheard of. This method of discipline is very effective in improving an employees performance, which is the ultimate goal of all employee discipline.

There are also times when an employee is suspended with pay, which is an entirely separate situation. In that case, normally the worker is sent home while an investigation into a serious allegation against the employee is conducted. This often occurs in cases where the employee is accused of theft, sexual harassment, threats or violence. The employee cannot legitimately be disciplined until the investigation is complete, but the allegations are so serious that the employer does not want the employee at work until the issue is resolved. Police officers are routinely suspended with pay after a shooting. If they are found to be in the wrong, they are then disciplined. If they were found to be in the right, they are returned to duty.

Having a salaried employee take on additional duties is almost unheard of in private employment. First of all, since they are already responsible for working \\\”whatever it takes\\\” it is hard to see how this is a change. Second, it may actually penalize hourly employees more than the salaried employee. Todd is a hotel Front Desk manager. Instead of being suspended for poor customer service, Todd is forced to work 2 additional shifts at the front desk, in place of an hourly employee. This saves the company money, but the person who really suffers here is front desk clerk Cindy, whose hours are reduced from 40 to 24 that week, because Todd is working 16 of her hours. (Of course, the employer might also suffer from having someone with poor customer service on the desk that much!)

HR pros constantly have it drilled into them that they need to deal with the position, not the personality. That means that every front desk manager, or drill press operator, or general manager in the company needs to be held to the same standards, and treated fairly. We cannot expect more from Leon because he is such a great employee, and less from Todd because he has never been good at customer service. If Leon and Todd have the same job, they need to be held to the same performance standards. (Doing anything else would likely result in an EEOC complaint of discrimination based on race, color, religion, sex, age, etc.)

Requiring more of an employee who has a performance issue suggests that the employer is seeking revenge, or that the boss is unfairly persecuting an employee he does not like. This is not generally seen as good management. On the other hand, it is not unusual for a salaried employee to be told \\\”You had an unexcused absence on Wednesday, but you are still responsible for getting your work done. You will need to work on Saturday to complete it, or face disciplinary measures.\\\” In this case, the extra time is a way to avoid discipline, not a disciplinary action.

The purpose of employee discipline is not punishment…it is improving the employees future performance, so the same problem does not occur again. It is hard to see how adding to Todds workload is going to help him deliver better customer service, or to stop sexually harassing coworkers, if that is the problem. Some would say it will make it impossible for him to deliver better customer service, and expose more coworkers to Todd\\\’s unwelcome advances. That is certainly the argument Todd\\\’s attorney might raise in a discrimination suit or a suit for wrongful termination. It also sends a message to Todd and other employees that, for example, it is okay to be rude to customers or sexually harass coworkers, as long as you put in a few extra hours. Legally, that leaves the employer liable for lawsuits on sexual harassment.

It is possible that this tactic would work in your situation, but it would be a very, very unusual step for an employer to take. And an employer should probably not take it without consulting with an attorney who specializes in employment law, first.

Taking away earned vacation as a disciplinary measure would be illegal in several states, including California. In a number of states, once that time has been accrued, it is considered earned wages and must be paid. It is also not a tactic that is widely used.

Nationwide, about 70% of vacation time goes unused, among salaried managers making more than $50,000 per year. So you are probably taking something away that they may not be able to use, anyway. Psychologists tell us that discipline is most effective when it occurs soon after the offense. Taking away Todd\\\’s December vacation, for an offense that occurred in June, is not likely to improve his behavior.

Theoretically you could require that the salaried worker put in 7 days per week, but they could leave every day after working one hour, and still be paid for the entire day. And, again, the focus really should be on getting the employees job performance up to minimum standards — not on making the employee suffer for past mistakes.

Finally, some advice that you did not ask for. If you are crafting a progressive discipline plan, I would urge you to make it somewhat flexible. As a former member of the military, you are probably used to cut-and-dried rules. But it is always better to leave yourself some leeway in dealing with employees. Here is an example: Bob and Cheryl both miss a day of work. Bob is hung over yet again, for the twelth time in three months, and calls in sick. Cheryls five-year-old son has been kidnapped and is probably being tortured. At many companies, technically, Bobs absence would be excused (he is genuinely sick or qualifies for FMLA) and Cheryls would be unexcused (she is not sick and does not qualify for FMLA). Cheryl could be disciplined or even fired for the absence. A less rigid set of rules would permit Cheryls employer to grant her a temporary leave of absence — which is the right thing to do.

Hope this helps, and feel free to post any additional questions that you might have.

The best tactic would be to focus on the employees performance and/or productivity, rather than his bathroom usage. If you have a system in place to track how many calls each employee takes, or how many minutes their computer is idle, etc., it would be better to focus on that, rather than his bowel habits. You are right that it is not fair to other employees (or to the employer) for them to have to do a significant portion of his work. You may want to take drastic measures, like not having the other employees answer his calls. The calls would roll over to voice mail, and if he does not return them by the end of the day, he is disciplined. If that would negatively impact your business, you might consider taking the calls yourself whenever an employee is in the restroom, at least for the present.

Once you have objective criteria that shows his poor production, you can sit down and discuss it with him. Point out, for example, that it is not reasonable to pay him the same amount as the other employees, if he is only doing 80% of the work. Work with him to develop a plan to increase his productivity. This may very well solve your problem, without you mentioning the bathroom at all. If the performance does not improve, (unless the employee claims to have a disability) you would be justified in firing him, and hiring someone who can do the job.

If that tactic is not possible in your work environment, you may want to address the issue directly. The best way to frame it is that you have noticed that he is away from his desk quite a bit, especially just before lunch and quitting time, and other employees have to do his work for him. Ask him for suggestions on how he can improve his performance. If he is merely slacking (and we suspect he is, because the visits to the bathroom occur about the same time every day) he will probably stop.

There is a possibility that he is smoking in the bathroom, which you should be able to easily detect.

There is a possiblity that he has Irritable Bowel Syndrome (IBS) or another physical condition that requires him to spend considerable time in the bathroom. If he says that there is a medical reason for his frequent, lengthy bathroom visits, you probably should not probe for further details. However, you would be within your rights to require that he present a doctors certification that a medical problem requires sporadic bathroom visits, and how long. The certification need not include a diagnosis. And, the employee would still be responsible for completing all of his assigned work each day.

If he does have IBS (or another physical problem) there is a grey area regarding whether or not you need to make a reasonable accommodation for it under ADA, the Americans with Disabilities Act. First, a doctor would have to certify that this condition meets the EEOC requirements for a disability, which are pretty strict. Second, he would have to ask for a reasonable accommodation (although he does not have to use those exact words) that will permit him to do his job. If this happens, check with the EEOC on what constitutes a reasonable accommodation in this case. A reasonable accommodation might be for him to clock out each time he goes to the restroom, so that time is unpaid. Another reasonable accommodation might be to classify him as a part time employee who puts in 75% or 80% of the hours as a full time worker, and reduce his pay accordingly.

Under ADA, any diagnosis or medical information that you learn during this process must be kept confidential. (If it becomes necessary, you may be able to tell the other employees that there is a good reason why John has to spend so much time in the bathroom. You cannot tell them what that reason is.)

It is important to note that even when a reasonable accommodation is granted, the employer still has the right to expect good performance of the worker. He needs to meet the same performance standards per hour as your other employees.

One warning: You may be tempted to put a camera in the restroom, to figure out exactly what he is doing in there. Resist this temptation! Even in states where video surveillance of employees is legal, they have a reasonable expectation of privacy in the bathroom, so it is not legal there!

BTW — At many places of employment, 3 bathroom visits totaling 15 minutes per day would not be considered excessive. However, if he is spending 20 to 40 minutes per visit in the restroom, that is probably a cause for concern.

Yes. Every employer has two types of policies: written and unwritten. Even if the employer does not have a formal, written attendance policy, they have an unwritten one. Example: Jane is a new employee who is supposed to work 5 days per week. She calls in sick 4 days per week for a month. Almost any employer in the world would fire Jane for attendance issues…even though there may not be any written policy on it.

Ideally, an employer would have attendance policies in writing. However, it is impossible to write policies that cover every possible situation.

Usually an employee should not be surprised by a termination. It is a best practice in the HR world, to let employees know when they could be terminated, if they do not clean up their act. That is the purpose of written warnings, suspensions and other types of progressive discipline.

You are right to be concerned. OSHA standards require that employers provide rest rooms, and that employees be permitted to use them. So any restriction on bath room breaks is likely to become an issue for OSHA.

The best way to handle this problem is to address the real issue — this employees productivity. The problem is not that she is in the bathroom too often, its that she is not getting enough work done. That is a legitimate concern for any employer. Ideally, you should have already established minimum standards for productivity and those standards should be objective. In a factory, for example, the employee would be responsible for producing 47 widgets per hour. If you do not already have objective performance standards, its time to establish some.

Employees can legitimately be disciplined and even terminated for not meeting productivity standards.

If employees are not aware of the productivity standards, inform everyone in writing now. Then start disciplining anyone who does not meet them. To be fair, its probably better to review productivity on a weekly, rather than a daily, basis. If the problem employee wants to keep her job, she will very quickly figure out what she needs to do to increase productivity. And employee morale should increase immediately, becasue the other employees will see that you are addressing this problem.

Just one note: If by any chance the problem employee approaches you and explains that she is pregnant or has another physical condition that causes her to use the rest room frequently, you will want to proceed with caution. In some cases, allowing frequent bathroom breaks would be considered a reasonable accommodation under ADA (as long as she was meeting productivity standards.) And the employee does not have to use the words reasonable accommodation in making the request.

The best practice in the HR field would be to sit both of them down in the same room together, with you, and discuss it. Point out that you have observed hostility and you want to clear the air, once and for all. Allow each employee a specific length of time to vent, but require that they do so in a respectful way, without name-calling or swearing.

In a perfect world, you would learn that the hostility arises from a simple misunderstanding, everyone would shake hands and come out friends. In the real HR world, this hardly ever happens. After each employee has had her say, it is your turn. Point out that you do not expect these two to become best friends, but regardless of their personal feelings, they need to be civil and cooperative with each other at work. They are both on your team, and you expect them to work together.

Also remind them that any hostile behavior is a performance issue. If Trina slams down the phone after a conversation with Margaret, Trina is not doing her job properly and can be disciplined or terminated. (If Margaret insulted Trina first, Margaret can also be disciplined or terminated.) Each employee is responsible for her own behavior, even if she is provoked. Give examples of any hostile behavior that you find unacceptable. You cannot control how employees feel, you can expect them to control how they act. Ask each for agreement in solving this problem and being civil to each other.

Hopefully, this will solve the problem — but follow-up is absolutely crucial. The very first time you observe one of them doing something that is hostile, you need to pull that employee (alone) into your office and address it as a performance issue. If you do so, the hostile behavior will stop. If you ignore a few problems, it will continue. In rare cases, one employee will not be able to stop her hostile behavior, and you will have to let her go. (Sometimes, both employees.)