It is illegal for an employee to

“It is illegal for an employee to…”: What HR and Employers Need to Know (and What’s Actually Illegal)

If you’re searching for “it is illegal for an employee to,” you’re likely trying to determine whether a worker’s behavior justifies discipline or termination—or whether your organization is about to take an action that could create legal exposure. The key compliance takeaway: many workplace “illegal” acts are not crimes, but they can be serious policy violations, safety violations, or civil wrongs. Meanwhile, some employer reactions (like retaliation or improper unpaid suspensions) can create bigger legal risks than the original employee conduct.

This SwiftSDS guide breaks down what can truly be “illegal,” what’s merely prohibited by policy, and how to handle scenarios like “can an employer tell you not to come to work” without triggering wage-and-hour, leave, discrimination, or retaliation claims.

Understand the Difference: “Illegal” vs. “Against Company Policy”

Illegal (law-based) employee conduct

Employee behavior may be illegal when it violates:

• Federal or state criminal laws (theft, assault, drug distribution, etc.)
• Civil laws (harassment, defamation, fraud, misappropriation of trade secrets)
• Workplace safety laws (e.g., tampering with safeguards may implicate OSHA-related duties)

Policy violations (not necessarily illegal)

Common “terminable” conduct that is often not illegal in itself:

• Excessive tardiness
• Poor performance
• Unprofessional communication (unless it crosses into unlawful harassment or threats)
• Refusing optional overtime (depending on classification/contract and state rules)

For broader compliance context, many employers codify these distinctions in their policies—see SwiftSDS guidance on employee handbook requirements by state.

H2: It Is Illegal for an Employee to… (Common Scenarios with Compliance Impact)

H3: Steal wages, time, property, or data (time theft, expense fraud, theft)

Employees can expose themselves (and sometimes the company) to legal liability for:

• Falsifying time records
• Fraudulent expense reports
• Theft of inventory, cash, equipment
• Misuse or theft of customer data (which may trigger privacy/security obligations)

Actionable steps for HR

1. Investigate consistently and document findings.
2. Preserve access logs, timecards, and device records.
3. Avoid deducting losses from pay unless clearly permitted by state law and the deduction does not drop pay below minimum wage (FLSA risk).

Wage-and-hour rules are rooted in the Fair Labor Standards Act (FLSA)—a practical compliance reminder is to keep the required notice posted and accessible. Many employers use the DOL poster Employee Rights Under the Fair Labor Standards Act as part of their posting set and onboarding materials.

H3: Harass or discriminate against coworkers (protected class harassment)

It can be unlawful for an employee (including supervisors) to engage in discrimination or harassment based on protected characteristics under federal law (e.g., Title VII) and state analogs. This includes harassment that creates a hostile work environment or discriminatory employment actions (hiring, firing, pay, scheduling).

If you operate in California, your compliance obligations are especially detailed—see anti discrimination laws in california and the broader overview of california employment laws.

Actionable steps for HR

• Maintain a clear complaint procedure.
• Train supervisors on escalation and interim safety measures.
• Take prompt corrective action—delays can increase liability.

H3: Retaliate (yes—employees can retaliate too)

Retaliation laws generally target employers, but employee retaliation can still be unlawful when it includes intimidation, threats, or interference with protected rights (e.g., threatening a coworker for reporting harassment or wage violations).

Actionable steps

• Separate the protected activity (complaint/report) from performance or conduct management.
• Document legitimate, non-retaliatory reasons for discipline.

H3: Violate safety rules or refuse lawful safety procedures

Employees are not permitted to endanger others. Safety violations may also implicate your duty to maintain a safe workplace.

Actionable steps

• Apply safety rules consistently.
• Use progressive discipline where appropriate.
• If suspension is warranted, confirm whether it is unpaid and permissible (exempt employee salary basis rules can be triggered).

H2: “Can a Employer…?” The Employer Actions That Create the Biggest Risk

Many compliance problems arise not from what an employee did, but from how the organization responded.

H3: Can an employer tell you not to come to work?

Yes—an employer can generally instruct an employee not to report to work, for example:

• During an investigation (workplace violence, harassment complaint, theft allegation)
• Due to lack of work (temporary layoff or reduced schedule)
• During a public health or safety response
• When an employee is unfit for duty (reasonable safety concern)

However, how you do it matters. Your risk areas often include:

Pay and classification (FLSA and state wage laws)

• Non-exempt employees: must be paid for hours worked; if they do not work, they generally are not paid (subject to reporting-time/show-up pay rules in certain states/cities).
• Exempt salaried employees: improper unpaid suspensions can jeopardize the salary basis. Unpaid disciplinary suspensions are only allowed in narrow circumstances (e.g., full-day suspensions for workplace conduct rule violations under FLSA regulations).

A best practice is to ensure your wage postings and policies align with federal requirements. For multi-state teams, start with Federal (United States) Posting Requirements and ensure the current FLSA poster is displayed (see Employee Rights Under the Fair Labor Standards Act).

Protected leave conflicts (sick leave, disability, parental leave)

If an employee is told not to come in due to illness, symptoms, or a medical condition, confirm whether state/local paid sick leave applies and whether you are inadvertently interfering with protected leave rights.

For example, Arizona has specific earned paid sick time requirements—see arizona sick leave law.

Discrimination and retaliation pitfalls

If an employee recently:

• reported harassment,
• requested accommodation,
• complained about wages,
• or engaged in other protected activity,

then “don’t come in” may look like a retaliatory suspension unless you document a legitimate business reason and apply it consistently.

Actionable “do it right” checklist

1. Provide the instruction in writing (date, time, reason category—avoid over-sharing).
2. Clarify pay status (paid admin leave vs unpaid) and expectations (availability, confidentiality).
3. Apply consistent criteria across employees to avoid disparate treatment.
4. Document the investigation timeline and decision points.

H2: State Requirements That Often Intersect with “Illegal Employee Conduct”

Even when the employee conduct is clearly wrong, state wage/hour rules and notices still apply.

H3: Minimum wage and final pay obligations

Employers sometimes try to “offset” losses (e.g., stolen property) by withholding pay. This is a common compliance error. Many states restrict deductions, and minimum wage floors still apply under federal law.

If you’re managing teams in different states, it helps to track state wage floors and related rules, for example alabama minimum wage and California wage requirements (including ongoing discussions and misconceptions such as california 50 dollar minimum wage).

H3: Posting and notice requirements (often overlooked during investigations)

When workplaces are under stress—investigations, suspensions, turnover—posting compliance is frequently missed. SwiftSDS helps employers align notices to jurisdiction. For example:

• If you have employees in California, review California (CA) Posting Requirements.
• For operations in Illinois, see Illinois (IL) Posting Requirements.
• For multi-location teams, maintain a baseline via Federal (United States) Posting Requirements.

Some employers (especially public sector or MA-based organizations) also need specific state notices accessible to employees, such as Massachusetts Wage & Hour Laws.

H2: Practical Response Playbook When “If an Employee…” Does Something Serious

When you’re facing a serious incident, use a structured response:

1. Stabilize safety first

   • Separate parties, address threats, consider security or law enforcement when appropriate.

2. Place the employee on the right kind of leave

   • Consider paid administrative leave for investigations to reduce wage-and-hour and retaliation risk.

3. Investigate promptly and neutrally

   • Use a consistent process, interview witnesses, preserve evidence.

4. Decide and document

   • Tie the outcome to policy and objective findings.
   • Avoid moral judgments in documentation—use facts.

5. Close the loop

   • Communicate outcomes appropriately (need-to-know).
   • Update training or policies if the incident revealed a gap.

FAQ

Can an employer tell you not to come to work while they investigate?

Yes, commonly through administrative leave. The compliance risk is usually pay classification, retaliation optics, and consistency. Document the business reason and confirm whether the employee must be paid (especially for exempt employees).

If an employee refuses to work, is it illegal?

Not necessarily. It may be a policy issue or insubordination. But if the refusal is tied to protected rights (e.g., certain safety complaints, protected leave, accommodation needs), discipline can create legal exposure. Review your working time and scheduling obligations—SwiftSDS covers this in employment working hours law.

It is illegal for an employee to discuss pay with coworkers, right?

Generally, no. In many workplaces, employees have rights to discuss wages and working conditions under the National Labor Relations Act (NLRA), with some exceptions. A blanket “no pay discussions” rule can be unlawful.

Next step for compliance: Confirm your investigation procedures, wage-and-hour practices, and required postings are aligned across every jurisdiction where you employ people—start with SwiftSDS posting guides like California (CA) Posting Requirements and Federal (United States) Posting Requirements, then tailor by state.