© 2013 Rybicki & Associates | P.C. R YBICKI & A SSOCIATES | P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Rybicki & Associates | P.C. 465 First.

© 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


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

IntentionalStereotyping“Associational”

“Disparate Impact”

Accommodation

ReligiousDisability/Medical

(Marijuana?)

Privacy


Potential Problems

Collective and “Concerted” Activity

Off-Duty Conduct Protection

Social Media Protection

Interference with Employees’

ContractsBusiness

Opportunities

Others


EMPLOYEE DRESS


Problem Created by Dress

Company Image

Other Employees’ Perception of EmployeeEffectiveness of EmployeeAbility 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?


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?


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?)


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?


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?


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?


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 InterestTrade SecretsPublic 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


RYBICKI & ASSOCIATES | P.C.LABOR AND EMPLOYMENT ATTORNEYS

THANK YOU!

Richard C. RybickiRybicki & Associates | P.C.

465 First Street WestSonoma, CA 95476

(707) 222-6361

www.rybickiassociates.com

© 2013 Rybicki & Associates | P.C. R YBICKI & A SSOCIATES | P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Rybicki & Associates | P.C. 465 First.

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