Employers may receive many complaints from its employees on a daily basis. Some of the complaints may be valid, and some might not. However, if the company receives a complaint of harassment or discrimination or retaliation, it should be investigated. For best practices on performing an investigation, check out  The Employer’s Step By Step Guide to Conducting Harassment Investigations.  

Before the investigation is actually conducted, the company may need to separate the victim and the accused- this is especially true if they work in the same department or if one supervises the other. This article will address how to determine which person to place on leave (if leave is necessary) and whether the leave will be paid or unpaid. 

OPTION ONE:
One option is to place the parties on administrative leave while the investigation proceeds. Is the accused, victim or both placed on leave? Is it paid or unpaid? 

In Florida, there is no obligation for an employer to place an at-will employee on paid leave during an investigation. But think about how an employee will react to unpaid leave due to an investigation? In addition to a potential decrease in employee morale, there may be other legal reasons to allow for paid leave pending the duration of an investigation. Therefore, employers should consider paid leave- and here is why:

1. Unpaid leave for an exempt employee might cause wage and hour issues. For example, an exempt employee should be paid the same amount weekly, and unpaid leave may remove the exempt status;

2. Unpaid leave may encourage or cause discrimination claims depending on the race, religion, gender, etc. of the alleged accused and alleged victim. For example, if the person who was placed on unpaid leave was hispanic, and the other parties are Caucasian, this may give rise to a discrimination claim.

3. Unpaid leave for the alleged victim may result in retaliation claims. For example, if the victim is the one who complains and otherwise engages in a protected activity, placing that person no unpaid leave will likely be deemed an adverse action, thereby giving rise to a retaliation claim.

Note that the accused is typically the one placed on leave, and not the victim, which will resolve some of the above issues. Therefore, the employer should always proceed with caution when placing the victim on any type of leave. 

OPTION TWO:

If paid leave is not an option, the employer may consider other options to accomplish the goal of conducting a proper investigation while also providing protections to the victim until after completion of the investigation. Other options include the following: separating the employees while at work; changing supervisors or work schedules and working from home. If any change is made to the work circumstances of the victim, the employer should consider receiving confirmation in writing that the change is acceptable to avoid a potential retaliation claim (i.e.: change of job, decrease in pay after engaging in a complaint/protected activity). This will help protect the company in the event the employee argues the change constituted retaliation.

IS A LEAVE OF ABSENCE EVEN NECESSARY?

When considering the above options, you may wonder if a leave of absence during an investigation is even necessary? The short answer is no, however, the employer may want to consider a leave of absence when the allegation involves very serious claims, or where the employee should not be permitted at work, such as allegations of theft or physical violence. 

Want to make sure your employees/management team knows how to address and prevent harassment claims. Need a refresher on how to investigate a claim of harassment? Check out my on-demand training on Sexual Harassment Prevention for Supervisors to help ensure you are engaging to best practices to avoid litigation.

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