If you ever get frustrated with dress code issues, spare a thought for the managers at Disney, responsible for ensuring that male employees’ mustaches must line up exactly with the corners of his mouth, and female staffers fingernails are maintained at a strict one-quarter inch in length. This isn’t the only company with a crazy dress code—imagine trying to police the policy from Swiss bank UBS that employees apply perfume while naked and immediately after showering!
Although your dress code policy is probably much more conventional, that doesn’t mean you won’t be faced with employees who flout it. If you don’t deal immediately with the issue, other staff members will feel that the rules aren’t important.
Step One: Raise Awareness
Make sure employees know about the policy. While longtime staffers might know the rules, consider how you let new employees know. If the policy isn’t already written, include the details in the employee handbook and provide regular reminders to staff. Giving examples of the types of dress that would not be acceptable is important—particularly if your policy is fairly generic.
- Conversation Tip: “Staff should be dressed professionally and appropriately for the workplace. Open-toe shoes, like flip flops and sandals, are not appropriate for our operations and are a safety concern.”
Step Two: Respond to Complaints
Often the first notification you receive about a dress code violation is a complaint from another employee. Review the dress of the employee who is alleged to have violated the rules, and decide if the complaint is accurate.
Step Three: Talk to the Employee
Don’t embarrass the employee in front of coworkers. Instead, ask the employee to meet with you in a private office or conference room, away from coworkers.
- Conversation Tip: “Can you step into my office for a second? I need to talk with you about the dress code.”
Some staff members will be defensive about perceived violations and will be unreceptive to your comments. Avoid judgment or criticism about the clothing—keep a neutral, calm tone. Don’t make jokes—even if you think you’re lightening the mood, the employee may believe you are ridiculing their choices and personal style.
- Conversation Tip: “I asked to meet with you because your outfit violates the dress code. This isn’t anything personal about your choices, just that the company doesn’t permit hats or shirts with slogans. Did you realize your outfit violated the policy?”
Step Four: Reasons and Accommodations
Try to identify if there was a reason the employee violated the code. In some circumstances, a worker’s religious beliefs or disability may mean they want to wear an item that violates the code. An employer is not necessarily obligated to relax the regulations just because an employee asks, but you should definitely examine the employee’s reasons, consider the issues and identify any other acceptable solutions before making a final decision.
- Conversation Tip: “Is there a particular reason you need to wear a hat? Please let me know if you’re seeking an exemption to the policy so we can consider if that’s a possibility.”
Step Five: Fix the Problem
Direct the employee to correct her outfit. If the issue is superficial—excessive jewelry or a hat, for example—the employee can simply remove the offending item until the end of her shift. Tops and t-shirts that violate the code can be covered with a jacket, or if the company has spare uniforms, you can simply lend one to the worker for the day. But if the employee’s entire outfit needs to be replaced, you may need to send them home to change.
- Conversation Tip: “Do you have a spare outfit you can change into? Otherwise, I’m going to have to send you home to change your skirt.”
Step Six: Sending the Employee Home
Let employees know that the company will not tolerate violations of the dress code by sending the employee home to change if there is no other way to fix the issue. Depending on what time of day the violation was discovered, or how far the employee lives from the workplace, they may want to take the remainder of the day off.
You are not required to compensate the employee for the time taken to return home and change.
- Conversation Tip: “You won’t get paid for the time it takes to travel home and change, but if you would prefer, you can use your accrued vacation time.”
Step Seven: Further Violations
Isolated, unintentional incidents are unlikely to present a problem, but if your employee continues to ignore the policy, you’ll need to discipline them.
- Conversation Tip: “In future, you are required to abide by the dress code. If you have any question about whether an item might violate the code, you should check with a supervisor or manager before you wear it to work. If you continue to disregard the policy, it will lead to discipline, up to and including termination.”
You’ve probably already heard that documentation is essential. But why is it so important? The answer is simple: If it isn’t documented, it didn’t happen.
Any time you’re dealing with an employment action—whether it’s counseling an employee, giving a performance evaluation, or terminating employment—accurate, detailed documentation must be reflected in the file.
Your documentation will allow you to establish that the company has followed the law and has taken actions against an employee for a legitimate business reason. Employees have many avenues to argue discrimination, and need only to present a prima facie case initially. In other words, the employee only has to show that they are a member of a protected class, and on its face—or at first glance—the action seems like it could be discriminatory. Your documentation is the defense against the claim, demonstrating that there was a reasonable, justified business reason for your actions.
The quality of your documentation is essential however, and can mean all the difference between the instant dismissal of the claim, or protracted legal proceedings that ultimately find in the employee’s favor.
Make sure your documentation is the best it can be with our documentation dos and don’ts.
- DON’T include anything in your documentation you wouldn’t be comfortable seeing on the projector screen in court. When writing your documentation, think about how your words might ultimately be used against you. Consider if you would be comfortable seeing the information magnified on the big screen, or on the front page of your local paper. If the idea makes you cringe, revise your wording so that your documentation is as factual, objective and professional as possible.
- DO sign and date your documentation. No matter how carefully you documented the event, if you can’t demonstrate whether it occurred in 2012 or 1992, you’re in trouble. Emails are particularly useful from this standpoint because the date stamp, time stamp and delivery receipts can demonstrate exactly when the employee opened the email. But if you’re composing some other form of written documentation—a counseling memorandum or a summary of the discussion you had with an employee—make sure you sign and date the documentation. Even better, have the employee sign and date the documentation too—that way you can prove they were on notice.
- DON’T delay. Your documentation should be issued as soon as possible after the event you’re documenting. If you wait six months to write up an employee for poor customer service, you’re demonstrating that the company didn’t take the issue seriously at the time—regardless of whether that’s true or not. Worse, it could lend credibility to a claim of retaliation, for example, if the worker states that you suddenly began “finding” reasons for discipline once you discovered the employee was a union steward.
- DO tell the truth. Keep your documentation strictly factual. Don’t sugarcoat the issues in an attempt to be nice—it could backfire on you later. For example, if your documentation says, “you failed to complete your assignment in a timely manner, but I understand how busy everyone has been,” you’re actually making the case for the employee. If the worker was so busy that they could not be expected to complete the work, then you shouldn’t be disciplining them in the first place. But if they should have completed the work by the deadline, don’t make excuses.
- DON’T document every little thing. Ok, so that sounds inconsistent with the rest of this article. But writing down every small thing the employee does will make your documentation seem petty. If you have six different entries noting that the employee was a minute late back from lunch or forgot to say good morning when passing your desk, you risk sounding overly critical, and the arbitrator or judge may wonder if something else was motivating your behavior.
- DO share the documentation. Don’t keep secret notes on an employee—if they don’t know the behavior was a problem, they won’t know to correct it.
Bulletin boards are essential for the workplace—but when was the last time you really used yours? If you’re having trouble answering this question—or if the cobwebs hanging from the board tell the story all too well—you may be missing out on some of the many advantages of the company bulletin board.
Use the bulletin board to comply with your legal requirements to post state and federal information, including such items as the OSHA 300 log. It’s the employer’s responsibility to ensure this information is posted during the legally mandated time periods and the posters themselves are maintained and up to date.
If your company is unionized, you may have negotiated a provision for the union to have a bulletin board, or share a space on the company board. If you’re allowing the union to post information, rules governing the information that the union is permitted to post are critical. Rules can include a prohibition on items that are ridiculing, defamatory or disparaging towards individuals, for example. The rules should also specify whether the materials must be reviewed or signed off by a member of management before posting, and who has the right to remove items from the board.
In many cases the union board can be a useful tool to build the employee-employer relationship, disseminating information jointly released from the labor management committee, for example. But tread carefully—even seemingly insignificant actions can be viewed as serious depending on the timing of the incident. For example, an employer who removes certain union postings immediately before a representation election can face an unfair practice charge.
Virtual Bulletin Boards
In today’s workplace, some employers question whether a physical bulletin board is still relevant or needed. As we spend more and more time online, a virtual board can seem like the most logical option, and there are many advantages to the electronic approach. But there are several major advantages to the physical board that a virtual alternative will never replace:
- You can make sure employees look at the board regularly. If a board is in the break room, or placed strategically above the time clock, it’s difficult for employees to claim they never had an opportunity to look at it. However, if employees claim they never logged into the virtual site, didn’t know how to access it, or didn’t click through to see the various policies in detail, it can be harder to demonstrate they were on notice of a particular issue.
- You can meet state and federal posting obligations. Depending on the specific language, you may not be able to meet the posting requirements with a virtual board.
- You can include emergency information. In a crisis employees can’t—and shouldn’t—take time to log in to the internet to find out emergency contact information or evacuation instructions. But a bulletin board above the fire extinguisher, in an easily accessible place can host a variety of useful emergency information.
Top Tips to Make the Most of Your Board
- Update the board regularly. If employees see federal and state posters are regularly updated, and policies are frequently revised, they’ll come to rely on the board as a source of information and guidance. Review the material on a regular basis and remove any outdated information.
- Comply with the policies you post. If you don’t adhere to the policies on the board, the bulletin board itself can become exhibit number one in the case against the company. Similarly, prevent any unauthorized, unwanted or harassing postings that could create liability for the organization. Use a locked glass door to prevent employee tampering and ensure all material is sanctioned and appropriate.
- Keep it relevant. If employees are interested in the content of the board, they’ll be more likely to check it and, as a result, see any changes to legislation, policy or practice. Include information to keep staff coming back, such as employee kudos and current job listings.
- Minimize the clutter! Divide the board into sections for easy reading. Don’t post multiple printed documents one on top of the other. Instead, print the most relevant excerpts from the policies and maintain a set of policy manuals, union contracts and employee handbooks somewhere close to the board for employees to refer to. Use color and different fonts to break up the board and keep it interesting.
Does the ability to assign tasks make you a supervisor? Or do you also have to be able to hire and fire those staff whose work you assign? If you’re not sure what the answer is, you’re not alone. Even the courts have struggled to determine which employees really fit the definition of supervisor under Title VII of the Civil Rights Act.
But we might soon be a lot closer to an official answer on the matter. In late June, the United States Supreme Court announced it would review an appellate court decision in the matter of Vance v. Ball State University and give a final answer to the current split in opinions between various federal appellate courts.
In Vance, the plaintiff alleged racial abuse, physical threats, and harassing conduct, including references to the Ku Klux Klan. She was the only African American in her department. Vance filed an action in federal court against her employer, Ball State University, but the district court granted summary judgment in favor of the employer because Vance’s harassers were coworkers and not supervisors over which the university would have control.
Supreme Court precedent establishes that an employer’s liability for harassment and hostile work environment extends only to conduct and behavior of those who are supervisors, unless the employer is negligent. In Vance, the employer was not negligent, and while the plaintiff’s harassers directed her day-to-day work, they did not have the authority to take formal employment action against her. Because of this, neither the district court nor the appellate court recognized the harassers as meeting the definition of supervisor. As the 7th Circuit noted, “We have not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.”
The stance taken by the 7th Circuit in this matter—which matches the approach taken by the 1st and 8th Circuits—limits the definition of supervisor only to those employees who have the authority to “hire, fire, demote, promote, transfer, or discipline” the complainant. In contrast, the 2nd, 4th and 9th Circuit has found that a supervisor is someone with authority to direct the complainant’s daily work—a much broader and more inclusive definition, and one that is shared by the U.S. Equal Employment Opportunity Commission and the California Fair Employment and Housing Act.
This case is one to watch. It will be critical for employers because the broader definition of supervisor means the employer could be liable for many more workers than under the stricter interpretation of the rule. Oral argument is scheduled for Fall 2012—so stay tuned for more information on the ultimate decision.
For more information, please visit us at www.laborlawcenter.com or call (800) 745-9970
Previous longitudinal studies from Duke University and John Hopkins University have suggested that the higher the worker’s obesity category, the higher the rates of injury for the employee. A Gallup study found that obese workers are more likely to have two or three simultaneous chronic conditions than workers of normal weight, and a new HBO documentary, The Weight of the Nation, estimates the total cost to U.S. employers is about $12 billion a year.
The new study from NCCI expands on those findings, indicating that once injured, obese claimants’ workers compensation benefits are more than five times that of non-obese workers with comparable injuries and claims.
The recent findings highlight why it’s so important for employers to focus on wellness programs and supporting weight loss initiatives. Obesity affects about a third of the U.S. workforce, so efforts to reduce those rates among employees can have a significant return on investment, both in productivity and direct costs.
One Duke University Medical Center study found that obese workers had 13 times the amount of sick leave as other workers—but by implementing wellness initiatives, employers may be able to reduce these figures.
However, employers must caution against implementing programs that inadvertently discriminate against an individual or their disability. In fact, discrimination against applicants just for being overweight is common in the workforce, according to a 2012 study published in the International Journal of Obesity. In the study, hiring managers were shown resumes with an attached photo. The resumes were identical, but the photos were of the same six women, before and after weight loss surgery.
The research found that the pre-surgery pictures, showing an obese applicant were more likely to receive a negative rating on factors such as leadership potential, predicted success, likelihood to select, salary and total employment rating. In addition, the obese applicant was typically ranked lower than the same person after weight loss surgery.
Depending on your state, discrimination based on obesity alone is not necessarily prohibited. But obesity can be intertwined with a protected disability, meaning the kind of stereotyping found in the study may potentially violate the ADA. In addition, the researchers point out that by discriminating, employers lose a pool of talented, skilled workers. A better approach is to encourage workers to take care of their own health through targeted wellness and weight loss initiatives.
For more information, please visit us at www.laborlawcenter.com or call (800) 745-9970