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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18791
Experience:  Employment/Labor Law Litigation
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I was just suspended without pay for a of 2 days for

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I was just suspended without pay for a period of 2 days for what my employer claimed was not doing my job properly. There were no prior warnings, reprimand or documented conversations about the incident. I am a salaried employee. Is my employer allowed to do this?
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

Do you have a contract of employment stating that you can only be terminated or suspended for cause?

Does your employer have a company policy specifically requiring warnings, reprimands or documented conversations prior to suspension?

Do you have any evidence to suggest that the employer is treating you this way based on your race, religion, gender, age, disability or FMLA use?
Customer: replied 3 years ago.

I do not have a contract but there is a company policy. Unfortunately, it is in my desk at work and I do not have access to it at this time. I do have a disability and it does seem he is doing things to try and get me to leave but that is only a perception and is difficult to prove.

Ok. On the policy, I understand that you don't have it right now. That is something you'll have to look at closely.

Without a contract of employment, you are "at will" which means that legally the employer can terminate or suspend your employment at any time, with or without cause. So, nothing externally (by that, I mean statutes or regulations imposing something on the employer) requires that an employer give warnings, written notices or any other pre-action process before suspending or terminating an employee.

So, any sort of pre-action process would have to be established by the company itself, through their own company policies. If the employer breaches their own policy, they can technically be sued for breach of that contract. Now, you have to weigh the cost/benefit of suing over a two day suspension rather than a termination. Suing your employer for breach of contract is not a protected activity, meaning that your employer can be forced to pay you for those two days, but then they can fire you. Rather than suing for a suspension, I would work internally through HR if the company policy makes it mandatory to give you some sort of warning before suspension.

Now, all that changes if you can allege that the basis for this treatment is your disability. You don't need proof, exactly, of this person's discriminatory basis. All you need is a reasonable suggestion. If this person is hardest on you, and no one else, that's a good fact. If other people were given warnings before suspensions, but not you, that's a great fact. It helps to reasonably establish a claim called "disparate treatment" or simply differing treatment. When you are treated differently and the only discernible difference between you and others is your disability, it raises the presumption that it is your disability that is causing the differing treatment.

You can certainly, in your complaint to HR, state that you believe that your disability is the basis for these actions and you do not feel that you were treated properly according to the company policy (assuming that the policy turns out to be helpful to you). Even if the policy isn't helpful to you, you can still make this allegation to HR. You don't have to know that you are right or even be right to make that claim and put the employer on their heels as they must take any such suggestion seriously. Unlike suing them in court for breach of contract for the two day suspension (if the policy is helpful to you), claiming discrimination, even if it doesn't pan out, is a legally protected activity. Any action taken against you following that claim will take on the appearance of retaliation for your having said it, which would be illegal....retaliation is not permitted under the ADA.

If the employer isn't cooperative or doesn't take the claim seriously, you then contact the EEOC to file a complaint with them. That would give you a third party looking in on their actions. That is also legally protected.

So, I know you stated the disability as an afterthought, but it is the strongest legal issue you have going forward.
Customer: replied 3 years ago.

The reason I think that it is the disability is, he changed my entire job without informing me prior. Also, he kept stating that the suspension and not doing my job properly was due personal issues were interfering. He had no idea what personal issues he was referring to when I asked him but he just had a "feeling".

Ok. I believe it is reasonable to make that allegation to HR. You may find that the company quickly comes to your aid or they do not. Regardless, the best legal action is to state your suspicion to the employer. Worst case is that they do nothing and you then have to escalate to the EEOC.

That is certainly going to be a more positive result that passively waiting for this manager to continue to harass you to the point that he can drum up a semi-legitimate basis to terminate you.
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