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30th Annual North Bay Employment Law & Human Resources Conference. Employee Dress, Conduct and Expression. Richard C. Rybicki Rybicki & Associates | P.C. 465 First Street West Sonoma, CA 95476 (707) 222-6361. BASIC ISSUES. “Expression”. Dress Language Conduct Association.

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30th annual north bay employment law human resources conference

30th Annual North Bay Employment Law & Human Resources Conference

Employee Dress, Conduct and Expression

Richard C. Rybicki

Rybicki & Associates | P.C.

465 First Street West

Sonoma, CA 95476

(707) 222-6361

expression
“Expression”
  • Dress
  • Language
  • Conduct
  • Association
  • Expressive Items
  • Grooming
  • Body Art
  • Music, Video, Social Media Use
conduct activities
Conduct & Activities
  • Working Time
  • Before & After Work
  • Breaks & Meal Periods
  • Off-Duty Conduct
  • Off-Duty Activity
  • Groups & Clubs
  • Political Activity
  • Social Media
potential problems
Potential Problems
  • Actual Discrimination
    • Intentional
    • Stereotyping
    • “Associational”
  • “Disparate Impact”
  • Accommodation
    • Religious
    • Disability/Medical (Marijuana?)
  • Privacy
potential problems1
Potential Problems
  • Collective and “Concerted” Activity
  • Off-Duty Conduct Protection
  • Social Media Protection
  • Interference with Employees’
    • Contracts
    • Business Opportunities
  • Others
problem created by dress
Problem Created by Dress
  • Company Image
  • Other Employees’ Perception of Employee
    • Effectiveness of Employee
    • Ability to Regulate Other Employees’ Dress
  • Offensive to Other Employees
common problems
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.)
regulating dress
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
exercise caution
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
example
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?
example1
Example
  • Employee 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?
potential accommodation
Potential Accommodation
  • Disability (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?)
problems created by conduct
Problems Created by Conduct
  • Disruptive Speech
  • Disruptive Conduct
  • Potential Harassment
  • “Imputed” to Employer
  • Company Image
  • Customer Comfort
  • Conflicts of Interest
  • Conflict with Company Culture
common problems1
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
examples
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?
examples1
Examples
  • Two 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?
examples2
Examples
  • An 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?
regulating conduct
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
specific issues
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).
specific issues1
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
specific issues2
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.
off duty conduct
Off-Duty Conduct
  • Off-Duty Conduct is a Difficult Issue
    • Conflicts of Interest
    • Trade Secrets
    • Public Criticism by Employee
  • It can be difficult to discipline based on off-duty conduct
examples3
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.
examples4
Examples
  • Employee is arrested for possessing “obscene” materials.
    • He claims they are political propaganda.
    • There is a front-page story in the local paper.
examples5
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)?
examples6
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.
thank you

THANK YOU!

Richard C. Rybicki

Rybicki & Associates |P.C.

465 First Street West

Sonoma, CA 95476

(707) 222-6361

www.rybickiassociates.com