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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Disciplinary Suspensions for Exempt Employees Q&A
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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Information provided in HR Matters E-Tips is researched and reviewed
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law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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