Tom Johnson Discusses Paid Administrative Leave During Investigations With SHRM

In an article for The Society for Human Resource Management (SHRM), labor and employment partner Thomas Johnson II provided insight on how employers may want to place workers accused of misconduct on administrative leave.

Johnson shared that, if an allegation involves suspected theft by a person in a financial control position, an employer may choose to place that person on leave to protect against future loss and allow auditors access to materials without employee interference.

He further expanded on what would happen if an employer chose to place a person on leave, explaining that it often will make the leave paid because the allegations have not yet been corroborated and the employer wants to avoid litigation. “Using paid leave is consistent with the idea that leave pending an investigation is not a form of discipline,” Johnson said. He added that paid administrative leave also allows employers to avoid potential issues under applicable wage and hour laws, including the Fair Labor Standards Act. “This is an important issue, especially with respect to exempt employees and maintaining their classification,” he highlighted.

Johnson noted that, when the investigation is expected to be short and the employer is almost certain that the employee placed on leave has engaged in a significant violation of workplace policies or the law, the employer may be more likely to consider using unpaid leave, despite the risks of doing so.