Suspended From Job During Investigation.

Being suspended from a job during an investigation is a temporary measure, not a termination. Suspended without pay pending investigation is the harder version, and the pay question is usually the first thing worth establishing. If I am under investigation at work should I be suspended at all? Not automatically - and a suspension from a job has to rest on something. It removes an employee from their job position, but it does not itself end the employee’s job. As with other types of administrative actions, a workplace suspension has many different implications, and employees need to understand what to expect while they are away from their job.

After an investigation concludes, the employer can make a decision about what will happen next. Depending on the results of the investigation, the employer may:

• Reinstate the employee to their position;
• Impose disciplinary action;
• Extend the suspension period; or
• Terminate the employee’s employment.

Employees suspended while an investigation is pending need to understand why pay status matters in these cases as well. There are different financial and legal consequences to being suspended with pay as compared to being suspended without pay. Employees who are suspended without pay may be entitled to seek compensation or challenge the suspension on various grounds.

Employees who are unsure of their pay status should not assume that their salary or wages will continue to be paid during the investigation. Employees should request written confirmation from their employers about their pay status as soon as possible. Even when an employee is suspended without pay, they will usually need to avoid making employment decisions that could negatively impact their future career goals.

Again, unless the employer separately communicates that employment has ended, employment ordinarily continues during a suspension pending investigation. It is important for employees to understand the difference between an investigatory suspension and a termination. This is especially true for those who are concerned about the possibility of being terminated due to allegations that may be false or not rise to the level of a terminable offense. When employees face a workplace suspension pending investigation, they need to carefully consider all aspects of their situation and determine whether an employment lawyer can help protect their interests.

When Can an Investigation Suspension Become Indefinite or Unlawful?

To what extent can a private employer’s investigation suspension go on? Generally, there is no universal deadline that applies in all circumstances. Instead, an employee’s right to return to their position will depend on a variety of factors. These include, but are not limited to, the employee’s employer’s policies and procedures; the terms of the employee’s employment contract; the terms of any applicable collective bargaining agreement; and applicable state law.

While employees who are suspended pending investigation may need to be away from their jobs indefinitely in some cases, they should not assume that an indefinite suspension is lawful. Even when the investigation that is the basis for the suspension remains open, employees can often be protected. This is particularly true in these circumstances:

• In the private sector, most employees are considered at-will employees. In most cases, this means their employers may choose to terminate their employment at any time, for any reason as long as the reason is lawful, and without need for any advance cause or justification. This includes the possibility of termination before the conclusion of an investigation (and before a verdict).
• The rules that apply to at-will employment do not authorize employers to terminate employment based on discrimination, retaliation, or any other prohibited reason. This means that employees who are terminated based on allegations which are false or do not rise to the level of a terminable offense may have grounds to sue.

When an investigation suspension leads to termination, employees will need an employment lawyer to determine if they have grounds to file a lawsuit against their employer. In certain situations, this may include filing a lawsuit for retaliation or discrimination if the allegations are false or otherwise not to be trusted.

What Can You Say to HR While Suspended Without Damaging Your Case?

If you work for a company and are suspended pending an investigation, there is a good chance that you will have an investigative interview with your employer. During these interviews, employees may be able to demand union representation if their employment is subject to a collective bargaining agreement. Employees who are entitled to representation can insist that the employer respect their right to have a union representative present if the interview could lead to their discipline.

Employees who are not covered by collective bargaining agreements generally do not have a right to union representation during investigatory interviews with their employers. This generally includes no right to demand the presence of an attorney as well.

Employees who are not covered by collective bargaining agreements do not have a right to have a union representative or attorney present when they are interviewed by their employer. As a result, nonunion employees will need to be careful about what they say to their employer, and avoid saying anything that may harm their case. To this end, employees should follow these guidelines:

• Don’t guess.
• Don’t speculate.
• Avoid providing unnecessary details.
• Answer specific questions truthfully.
• Do not make emotional accusations.

When employees are asked questions by their employers during an investigatory interview, their employers are listening for anything they can use against them. As a result, employees should be sure that they don’t make admissions, threats, statements indicating plans for retaliation, or statements indicating that they may destroy evidence.

If your company has lawyers present during your investigatory interview, you need to keep in mind that they are not there to represent you. Company attorneys represent the company, and you will need to determine if you need to engage your own representation as well.

Spodek Law Group is a second generation New York firm. Todd Spodek practices out of the firm his father opened in 1976.

What Can a Suspension Change About Evidence, Unemployment, and Retaliation?

If you are suspended while your employer conducts an investigation, will you still be eligible for benefits, leave accrual, retirement contributions, or bonuses? There is no simple answer to this question. Because company policies and procedures, contract terms, and other legal factors apply, employees will need to confirm their eligibility in each case.

Employees who have been suspended should be thinking about evidence preservation. However, employees must make sure that they are complying with all applicable employer confidentiality, security, and document-retention requirements.

Employees should also preserve all relevant personal records. However, while employees are preserving evidence, they should not delete, alter, or fabricate evidence.

Can You Collect Unemployment Benefits if Your Job Is Suspended?

If your job is suspended, will you still be eligible to collect unemployment benefits? Whether an employee is eligible to collect unemployment benefits commonly turns on whether employment has ended. If employment continues during the suspension pending investigation, then, in most cases, employees will not be eligible to collect unemployment benefits while they are away from their jobs. However, employees who are suspended without pay may need to contact the employee benefits administrator to learn more.

If an employee’s job is terminated as a result of their employer’s investigation, then their eligibility to collect unemployment benefits will depend on why the employee’s job ended. Unemployment eligibility rules vary by state and often include specific rules about:

• Misconduct and suspension
• Voluntary resignation
• Availability for work

Again, if you are suspended, terminated, or denied unemployment benefits, it is important to speak with an experienced employment lawyer to determine what options you have available and what the next steps should be.

Why Do Federal Suspension Deadlines and Appeal Rights Differ From Private Employment?

When you are suspended during an employer’s investigation, the duration, deadline, and appeal rights associated with the suspension can depend on your employment status. If you are a federal employee, your suspension is primarily governed by 5 C.F.R. Part 752 procedures. In the federal sector, different rules and procedures apply when you are proposed for a suspension from employment, as compared to when you are proposed for a suspension pending an administrative investigation.

For federal employees, a proposed suspension from employment of up to (and including) fourteen days generally requires at least twenty-four hours to answer the proposed action, while a proposed suspension from employment of more than fourteen days generally requires thirty-days’ advance notice. However, there is an exception to the thirty-day advance notice rule that applies when the employee’s suspected conduct is punishable by imprisonment upon conviction, and the employer determines that advancing the date of the suspension is necessary to protect the agency’s interest.

Generally, federal employees are also entitled to be given an opportunity to review materials being relied upon in support of the proposed disciplinary action before a final decision is made. This includes the opportunity to respond to the materials and to receive written notice of the final decision about the suspension.

Among other grounds, federal employees can challenge certain prohibited personnel practices by filing a complaint with the U.S. Office of Special Counsel (OSC) or appealing an appealable adverse action to the Merit Systems Protection Board (MSPB). The Merit Systems Protection Board has jurisdiction to hear employees’ appeals involving removal from federal service, suspension for more than fourteen days, and other appealable adverse actions. Appeals to the Merit Systems Protection Board generally begin with a written appeal filed with the appropriate MSPB regional or field office, and an administrative judge (AJ) presides over the initial proceedings.

Due to the length and complexity of the federal sector’s administrative processes, federal employees have a limited number of appellate and judicial review rights. The MSPB may review an administrative judge’s initial decision, and employees may also be entitled to seek review in a federal district court or the United States Court of Appeals for the Federal Circuit, depending on the type of case.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.