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

BASIC ISSUES

“Expression” • Dress • Language • Conduct • Association • Expressive Items • Grooming • Body Art • Music, Video, Social Media Use

Conduct & Activities • Working Time • Before & After Work • Breaks & Meal Periods • Off-Duty Conduct • Off-Duty Activity • Groups & Clubs • Political Activity • Social Media

Potential Problems • Actual Discrimination • Intentional • Stereotyping • “Associational” • “Disparate Impact” • Accommodation • Religious • Disability/Medical (Marijuana?) • Privacy

Potential Problems • Collective and “Concerted” Activity • Off-Duty Conduct Protection • Social Media Protection • Interference with Employees’ • Contracts • Business Opportunities • Others

EMPLOYEE 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 • 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 • 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 • 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 • 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?

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 • 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?)

Other Dress Issues

EMPLOYEE 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 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 • 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?

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?

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 • 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 • “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 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 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 is a Difficult Issue • Conflicts of Interest • Trade Secrets • Public Criticism by Employee • It can be difficult to discipline based on off-duty conduct

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.

Examples • Employee is arrested for possessing “obscene” materials. • He claims they are political propaganda. • There is a front-page story in the local paper.

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)?

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.

DISCUSSION

THANK YOU! Richard C. Rybicki Rybicki & Associates |P.C. 465 First Street West Sonoma, CA 95476 (707) 222-6361 www.rybickiassociates.com

30th Annual North Bay Employment Law & Human Resources Conference