Breaking Bad Behavior:

Transcription

1 Breaking Bad Behavior: Employee Attire, Tattoos, Piercings, Body Odor, Horseplay, Social Media, Drugs & Alcohol, and More Presented by: Melody L. Rayl Phone: (816)

2 Bad Behavior in the Workplace Changing social mores are creating a number of associated issues in the workplace. Those issues can generally be categorized into primarily three areas. Dress and Grooming Policies Troublesome Behaviors in the Workplace Drugs and Alcohol Use and Abuse

3 GROOMING STANDARDS AND OTHER TRICKY ISSUES

4 Dressing For the Occasion

5 But It Is Neat and Clean! Employers are allowed to require employees to appear for work neat and clean so what does that look like?

6 Restricting Employees Dress or Clothing Employees have no right to dress as they please at work. Burdens on each gender must be equal: Are the policies neutral? Uniform? Example: Prohibit revealing or provocative dress at work, not gender-specific descriptions Conflict with accommodating employees religious beliefs: Safety issues generally trump religious concerns skirts vs. pants Loose clothing that could be caught by equipment. Head coverings.

7 Restricting Employees Dress or Clothing Company s Business Model may call for particular image: Abercrombie & Fitch Hooters Transgender employee dressing issues: Voluntary cross-dressing Pre and post-gender-reassignment surgery Be careful about subjectivity and BE CONSISTENT!

8 The Right Way to Implement and Enforce A Dress Code Implement a written policy. Be as specific or general as your business culture permits. BUT: Give more guidance than merely inappropriate. Absolute gender-neutrality not required, but differences should be justifiable Jewelry Piercings Hair Color Makeup Nails Deliver messages of non-compliance with sensitivity. For violations, offer chance to correct rather than discipline.

9 I Don t Have To Shave!

10 May Employers Limit Employees Facial Hair? Employers are generally able to impose grooming standards requiring men to be clean shaven or have only neatly-trimmed beards. No Constitutional Right for employees to appear as they wish in the workplace. BUT: Employers are well-advised to have identifiable business reasons for the policy: Business image and customer contact. Safety equipment (respirators/masks). Because we say so just doesn t sit well with agencies.

11 Employment-Related Challenges to Facial Hair Policies Any No Beard policy should have exceptions for: Medical conditions Religious accommodations Religious accommodation: Where employee s religion requires him to wear a beard, or an untrimmed beard, there s a good chance EEOC will take up his cause. Recent EEOC suit against auto dealership who refused to hire a Sikh settled in EEOC s favor. Adverse impact on African-American males: Pseudofolliculitis barbae condition that makes shaving painful. Generally unsuccessful. Safety trumps all! Respirator wear Machinery hazard

12 I Promise I Don t Scare People

13 What About Tattoos? Approximately 40% of all individuals under the age of 40 have at least one tattoo. Generally, employers are free to prohibit visible tattoos. Driven by business image or desire to avoid confrontation/ harassment claims. Nature/subject matter of tattoos may require employer to take action. Potential hostile environment from a tattoo. Beware of Kemetics an ancient Egyptian faith that prohibits covering of religious tattoos. Should have written policy and consistent enforcement.

14 It s Just A Nose Ring!

15 Employers Policies on Body Piercings Cases generally hold that it s acceptable for employers to conclude that piercings other than on ears conflict with company s: Branding Image Values Mission Courts have long held that gender based policies regarding ear piercings are acceptable. Piercings that could get caught in machinery can be legitimate safety concerns.

16 Employers Policies on Body Piercings Like dress codes, prohibitions on piercings should be well-thought-out, written, and applied consistently: Don t leave to supervisory discretion. Consider nature of the job (creative artist vs. customer contact in a bank). Potential for religious accommodation issues: Some religious practices involve piercing on nose and ears. Church of Body Modification (3,500 members) Costco won a case against a member in Massachusetts. Refusing to hire anyone with multiple piercings vs. requiring the covering of visible non-ear piercings.

17 I m Allergic To Deodorant!

18 Disagreeable Body Odor Body odor conversations almost always go badly. Focus on impact on work accomplishment (i.e., others won t coordinate with you) rather than just the odor issue. Possibility there may be medical condition/disability issue: At least one rare medical condition Trimethylaminura Metabolism (TMAU) can cause body odor. Theoretically possible for employee to have religious objection to personal hygiene generally, or at certain times.

19 Sensitivity to Scent One employee may object to another employee s scent or perfume: Possible disability/medical condition issue with employee requesting the offending co-worker be moved or isolated, or the complainer be given a private, enclosed and ventilated office. Employees have sued alleging multiple chemical sensitivity, but it s not recognized by AMA and cases have generally been unsuccessful.

20 GENERAL HEADACHES IN THE WORKPLACE

21 It Was A Joke!

22 Should Employees Be Concerned About Jokes and Horseplay? Horseplay and jokes can be physical and/or verbal: Can affect safety and create tort liability. Can create hostile work environment. Consistent discipline = non-discrimination. Jokes/comments about employee s protected status can t be permitted or condoned. Employer has legal obligation to investigate and correct behavior. Equal Opportunity Jokester not a defense.

23 Child s Play! Verbal horseplay can be problematic even if it does not seem like illegal harassment. EEOC v. Boh Brothers, 731 F.3d 444 (5 th Cir. 2013) Supervisor who made fun of male employee because he thought using wet wipes instead of toilet paper was feminine was found to be harassing because of sex.

24 It Was A Joke! Engaging in dangerous horseplay at work causes safety concerns and is certainly a legitimate, non-discriminatory reason for termination. Tort claims arising out of injuries caused by intentional acts have led many employers to adopt zero tolerance horseplay policies. K.S.A (a)(1) no coverage for horseplay Section , RSMo. reduced coverage for violations of safety rules

25 It s Not Gossip If It s True!

26 No-Gossip Policies May Have Good Intentions, But They re Tricky Employers may adopt a no-gossip policy, BUT a poorly drafted policy can chill employees rights under Section 7 of the NLRA. The issue: What s the topic of the gossip? Co-worker s personal life Owner/CEO makes too much money Company pays too much to one person/group Policies should focus on preventing discussions of personal issues, not work related issues.

27 Can Gossip Be Legally Protected? NLRA grants Section 7 Rights enforced by the NLRB Right to discuss or gripe about workplace issues, the employer or supervisors/managers. In 2013, NLRB held invalid a no-gossip policy that banned: Talking about a person s personal life when they re not present Talking about a person s professional life without his/her supervisor present Negative or untrue or disparaging comments or criticisms of another person or persons Creating, sharing or repeating information that could injure a person s credibility or reputation Creating, sharing or repeating a rumor about another person Need to carefully draft policies.

28 I Don t Have To Like Working Here!

29 Can You Stop the Complaining? The employee who constantly complains is miserable and makes everyone around him/her miserable. However, blanket workplace non-disparagement policies may well run afoul of Section 7 of the NLRA Since 2008, NLRB has repeatedly ruled invalid non-union employers civility policies such as: Non-disparagement of company or supervisors Respectful, courteous, polite & friendly treatment Inappropriate conduct Use of profanity No-bullying This type of conduct should be treated the same way the employer would treat harassment or theft... Investigate, Analyze, Evaluate, Act

30 You Can t Police My Internet Activity!

31 You Can t Police My Internet Activity! 40% of all employees use the internet at work 70% of pornography website traffic occurs from 9-5 Employers have been held liable for negligence by failing to enforce workplace computer use policies and/or failing to discipline employees found to be in violation. Adopt and follow policies regarding the use of electronic communication devices in the workplace.

32 Computer & Internet Policy 101 Every employer should have an up-to-date computer use and Internet/ policy. Explicitly state employees have no expectation of privacy when using their work computers. Reserve right to monitor employees computer use. Multiple prohibitions, such as: Excessive personal access of the Internet Accessing/downloading offensive material Using Company to harass other employees Sending/forwarding offensive jokes Copyright violations (using software w/o license) Remember the NLRA: Can t prohibit s about possible unionization or concerted activities in the workplace.

33 But She Wanted That Picture!

34 Policies on Smart Phones Company-supplied vs. personally-owned treated differently. The company that supplies the phone (and pays the bill), sets the rules on use: No personal use? Minimal personal use? KEY: Adopt a policy that can and will be enforced. Sexting: Policy should be broad enough to prohibit sexting between employees. Prohibit transmitting such texts or images to anyone on company-supplied phones. What s welcome today may well be harassment tomorrow.

35 I Have Freedom of Speech!

36 Workplace Freedom of Speech? No Constitutional speech rights at work for private employers. NLRA - right to discuss working conditions and criticize supervisors, managers, owners, etc. What can be prohibited? Threats of violence and violent outbursts. Attacks (verbal) on clients/patients. What prohibitions might NOT be OK? Profanity if related to discussions about supervisors or working conditions. Loud, confrontational statements, i.e., about boss or owner. Lesson: Consider the subject matter and context before disciplining an employee.

37 STONED OR DRUNK IN THE WORKPLACE

38 Let s Party!!!! Large numbers of employees are acknowledging the use of drugs and alcohol in the workplace during scheduled work hours.

39 It s Legal Increasing legalization of marijuana has created a number of work related issues 8 states and D.C. have legalized marijuana for recreational use Possession and use of marijuana remains a crime under federal law. Off-duty use of marijuana can still be regulated by employers even if it is legal under state law.

40 I Have A Prescription! What if your employee has a prescription? Over half of the states currently authorize medical use of marijuana with a prescription Employers cannot terminate employees for use of LEGAL medication. Although marijuana can be legally used, it is still an illegal drug and can be regulated through existing drug testing programs.

41 I Have A Prescription For That Too! Illegal use of prescription drugs is one of the fastest growing forms of illegal drug use in the USA. Current use of or addiction to illegal drugs is not a disability under ADA or CADA.

42 Cigarettes Nicotine addiction has not been recognized as a disability under the ADA. State and local laws will govern workplace tobacco use policies. Employers are not required to provide more breaks to smokers. While it can be done, employers should use great care in drafting plans that charge tobacco users more for healthcare premiums.

43 I Can Smoke These Inside Most state laws have not yet caught up to the e-cigarette craze. Employers are free to create their own policies based on their beliefs as to whether or not e-cigarettes should be allowed in the workplace.

44 The Doctor Said It s Good For My Heart Coming to work drunk can still get you fired! Alcoholism can be considered a disability under the ADA, however you do not have to forgive someone for a policy violation because they are an alcoholic. An ADA problem arises where an employee is treated differently just because they are an alcoholic.

45 It s 5 O Clock Somewhere Alcohol is the most widely abused drug in the United States Company holiday parties present unique issues on a number of fronts and should be carefully considered: Harassment policies Workers compensation issues Work culture Leadership deteoration

46 Final Questions Presented by: Melody L. Rayl Phone: (816)

47 Thank You Presented by: Todd Fredrickson Phone: (303)