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Advisory Opinion on Suspension Rights in Employment Agreements

Many employers assume that if an employee, especially in the healthcare arena, is suspected of engaging in some type of wrongful or dangerous behavior, they have the right to suspend the professional, with or without pay. A Florida appellate decision issued on June 12, 2013 indicates this may not be the case, absent express contractual language.

In Nancy Havens, D.D.S. v. Coast Florida, P.A., Case No. 2D12-10-47, the Second District Court of Appeal held that Dr. Havens had alleged a cause of action for breach of an employment contract sufficient to survive a motion to dismiss. Dr. Havens was in the middle of a five year employment contract when she was notified that she was suspended without pay, during the pendency of an investigation. Dr. Havens advised her employer that she could not be suspended without pay as her employment agreement did not authorize it. When her employer refused to pay her, she resigned and filed a breach of contract claim. After three lower courts granted Dr. Haven’s employer’s motion to dismiss, upon final appeal, the Second DCA held that the lower courts erred by improperly attributing “a substantive right into the contract that is absent from the employment agreement. Having authored the agreement, any ambiguity in the agreement must be construed against Coast.” The agreement was silent as to the ability to suspend or the compensation effects of suspension.

For employers, you may wish to consider including the right to suspend, with or without pay in your employment agreements. For employees, be aware that if your agreement contains express language regarding suspension rights and the effect on compensation, it likely will be enforceable.

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