© 2013 Rybicki & Associates | P.C.
RYBICKI & ASSOCIATES | P.C.LABOR AND EMPLOYMENT ATTORNEYS
30th Annual North Bay Employment Law & Human Resources Conference
Richard C. RybickiRybicki & Associates | P.C.
465 First Street WestSonoma, CA 95476
(707) 222-6361
Employee Dress, Conduct and Expression
© 2013 Rybicki & Associates | P.C.
“Expression”
Dress
Language
Conduct
Association
Expressive Items
Grooming
Body Art
Music, Video, Social Media Use
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Conduct & Activities
Working Time
Before & After Work
Breaks & Meal Periods
Off-Duty Conduct
Off-Duty Activity
Groups & Clubs
Political Activity
Social Media
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Potential Problems
Actual Discrimination
IntentionalStereotyping“Associational”
“Disparate Impact”
Accommodation
ReligiousDisability/Medical
(Marijuana?)
Privacy
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Potential Problems
Collective and “Concerted” Activity
Off-Duty Conduct Protection
Social Media Protection
Interference with Employees’
ContractsBusiness
Opportunities
Others
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Problem Created by Dress
Company Image
Other Employees’ Perception of EmployeeEffectiveness of EmployeeAbility to Regulate Other Employees’ Dress
Offensive to Other Employees
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Common Problems
Inappropriate Attire (Revealing, Racy, Sexy)
Inappropriate Messaging (T-Shirts, Buttons, etc.)
Uncomfortable or Out-of-Place (clothing, body art)
Confrontational (Personal Messages, Themes, etc.)
© 2013 Rybicki & Associates | P.C.
Regulating Dress
You may regulate dress, jewelry, visible body art
You are not usually required to justify the image you want to portray
But be careful in certain situations
© 2013 Rybicki & Associates | P.C.
Exercise Caution
Clothing, jewelry, items commonly associates with particular cultures or ethnicity
Particular types of clothing for men and women (cannot prohibit pants)
Be aware of potential accommodation requirements
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Example
Employee insists on wearing a religious item on her necklace.
What effect could this have on other people?
What do you want to do?
What can you do?
© 2013 Rybicki & Associates | P.C.
ExampleEmployee wears tight, revealing clothing to work.
Insists it is part of her culture and points to posters, media, TV shows, etc.
What effect could this have on other people?
What could she say if you restrict her dress?
What can you do?
© 2013 Rybicki & Associates | P.C.
Potential AccommodationDisability (facial hair, fabric and cloth, tight
clothing)
Gender/Preference (transgender status)
Religious Requirements or Expression
But note: religious accommodation rights may be limited by the federal constitution (“more than de minimus” hardship?)
© 2013 Rybicki & Associates | P.C.
Problems Created by Conduct
Disruptive Speech
Disruptive Conduct
Potential Harassment
“Imputed” to Employer
Company Image
Customer Comfort
Conflicts of Interest
Conflict with Company Culture
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Common Problems
Gossip, Unnecessary Talk, Privacy
Inappropriate Language and Terms
Insubordination, Work Complaints
Off-duty: unpopular organizations or causes
Off-duty: criticism of work, management, or co-workers
Off-duty: irresponsible or socially unacceptable behavior
© 2013 Rybicki & Associates | P.C.
Examples
Two employees share an office, loudly criticize another worker whose office is across the hall
What effects could this have on different workers?
What risks does their conduct create?
Any limitations on what you can do?
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ExamplesTwo employees share an office, listen to music that
frequently contains racial slurs and potentially derogatory comments about women.
How could this affect other employees, what risks does it create?
What might the two employees say about the music or your decision to prohibit it?
How would you handle it?
© 2013 Rybicki & Associates | P.C.
ExamplesAn employee works in one of many cubicles in a
room, She posts several religious pictures and often talks about her religion with other employees.
How could this affect other employees, what risks does it create?
What might she say about her rights?
How would you handle it?
© 2013 Rybicki & Associates | P.C.
Regulating Conduct
You may regulate on-duty conduct with some restrictions
Similar restrictions to speech
You are limited in regulation of off-duty, off-premises conduct
© 2013 Rybicki & Associates | P.C.
Specific Issues
“Concerted Activity”: Employees may be protected when they complain about or discuss working conditions.
Wages and Working Conditions: Employers cannot prohibit disclosure of an employee’s wages and working conditions (Labor Code §§ 232, 232.5).
© 2013 Rybicki & Associates | P.C.
Specific Issues
Off-Duty Conduct: Employees may not be disciplined or discharged due to off-duty, off-premises conduct (Labor Code section 96(k)).
The conduct must be lawful
The conduct must be away from the workplace
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Specific Issues
Political Activity: May not prohibit or influence political activity or affiliations (Labor Code § 1101, 1102).
Other Employee Complaints: Various laws – workplace safety complaints, legal violations, caregiver requirements.
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Off-Duty Conduct
Off-Duty Conduct is a Difficult Issue
Conflicts of InterestTrade SecretsPublic Criticism by Employee
It can be difficult to discipline based on off-duty conduct
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Examples
Employee is cited by the police for possessing marijuana, citation is published in the local paper.
Employee is cited by the police for “soliciting” (offering to pay for something you aren’t allowed to pay for), citation is published in the paper.
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Examples
Employee is arrested for possessing “obscene” materials.
He claims they are political propaganda.
There is a front-page story in the local paper.
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Examples
Employee takes a night job with a competitor.
What if the employee is working as something unrelated to his position (helps a friend’s winery in the field at crush when not working as a tasting room host at your winery)?
© 2013 Rybicki & Associates | P.C.
Examples
Employee posts negative comments about company staff on a Facebook page.
Employee starts the wildly popular “My-employer-is-unfair.com” website “informing” the public about your company’s unfair pay, policies, and expectations.