We officially entered the season of summer this week. What are the most common ways employers can get burned? I can think of four right off the bat.
https://www.youtube.com/watch?v=Qtbhrq8JyBw
(In the 1960s, melanoma was cool.)
Sexist air conditioning. It seems like a long time since we've read anything about this employment law "issue." The idea was that office air conditioning was set for men. That's why men are always comfortable and women are always freezing. I agree with the observation, but discrimination?
That one didn't count. Consider it a bonus. Here are the four real ones.
Burn No. 1: Dress codes. During the summer, it's hot. Which means some people don't use the best judgment in dressing themselves for work.
There are two ways employers can go wrong here. First, they may not have a dress code at all, which makes it very awkward for anyone trying to have "that talk" with the employee who comes to work in a skimpy sundress, no underwear, and flip-flops. Or they can have a bad dress code. Bad dress codes include ones that are too gender-specific (e.g., requiring coats and ties for men, and dresses and pantyhose for women) as well as ones that don't provide enough flexibility.
The best solution, in this era in which separate dress codes for men and women are actually illegal in some jurisdictions, is to fall back on general categories: "casual," "business casual," or "business." Even though they're vague, most people know what they mean. You can require "modest" attire. You can ban an entire category of clothing, such as "shorts." (But if you do, you may get this.) You can impose attire rules that are necessary for safety. And, of course, you should expect to occasionally have to make reasonable accommodations for employees' religious beliefs ("dirty foreheads are ok on Ash Wednesday!") and disabilities.
If your dress code is "casual," you may want to consider banning t-shirts with words or pictures on them. That will prevent you from having to decide whether a "Make America Great Again" t-shirt is ok while a "Black Lives Matter" t-shirt is not, or vice versa. If you want, you can make limited exceptions allowing company logos or union insignia.
Transgender employees should be allowed to dress according to the gender with which they identify. But you can still require them to dress appropriately for the gender with which they identify. For example, if your dress code is "business," then it's ok to prohibit a transgender woman from wearing a bikini to work because that would violate the "business" part of the dress code. Presumably you would treat a biological female wearing a bikini to work the same way.
Burn No. 2: Pay (and workers' comp) for employer-sponsored picnics, sports leagues, and other recreational events that occur outside normal working hours. The general rule is that if attendance at a work-related event is mandatory or "expected," then the employer has to pay non-exempt employees for their time in attendance. If attendance is genuinely optional, then the time would not be compensable.
But remember - if an employee performs work at a company event (for example, grills the hot dogs at the company picnic, or sets the tables, or runs to the brewery to pick up the keg), then the employee must be paid because he or she is actually performing work. And that is true even if attendance is optional.
These same rules generally apply to workers' comp injuries incurred during recreational events. If attendance is mandatory and the employee gets hurt, then the injury is probably compensable. If attendance is truly optional, then the injury is probably not compensable.
Notice how I keep using "genuinely" and "truly" to modify the word "optional"? Employers shouldn't make what I call the "Paulie" request: "I sure would hate to see you miss the company pig pickin', seein' as how I've gotta do your performance evaluation next week . . ." Or the "Michael Corleone" variation: "If you can't make the company pig pickin' . . . you'll disappoint me." If you use these tactics, attendance at your event is probably not going to be considered optional.
Burn No. 3: Misconduct at employer-sponsored events, such as harassment or alcohol-related incidents. Remember the rules we talk about every November as holiday party season begins? The same rules apply in June, July, and August. If you serve alcohol at the company picnic, consider putting some type of limit on the amount consumed, and be sure to serve plenty of food to go with it. If an employee is harassed at a company function, treat that exactly the way you would treat harassment that allegedly occurred in the workplace during normal work hours. In other words, conduct a thorough investigation, come to your best determination about what happened, and take appropriate action. As during the holidays (or any other time), it's not an excuse that the harasser was drunk.
Burn No. 4: Vacation pay. The Fair Labor Standards Act doesn't say anything about vacation pay, but just about every state wage and hour law does. In most states, once an employee accrues vacation, the time or the money is his. (Or hers.) That means if you terminate the employee, or if the employee quits, you must pay out all of the accrued unused vacation. It is not "severance." You have to pay it even if the employee hasn't signed an agreement with a release of claims. The timing of the payment varies from jurisdiction to jurisdiction, but be sure you know how to do it properly and in a timely manner.
(Many states, but not all, allow employers to provide for "forfeiture" of accrued unused vacation -- also known as "use it or lose it" -- but normally the terms for forfeiture have to be in writing and given to the employee before any forfeiture can occur. Also, under many state laws, the employee cannot be required to forfeit any vacation time that was already accrued when the forfeiture document was provided.)
On a somewhat-related point, I was interviewed last week by Allen Smith of the Society for Human Resources Management about "unlimited" vacation policies. I am not a fan. This video does a good job capturing why I prefer for employers to simply tell employees how much time they get:
https://www.youtube.com/watch?v=_ChQK8j6so8
Have I ruined your summer? I hope not. Go out and enjoy!
Image Credits: Photo of Tony Sirico (Paulie Gaultieri on HBO's The Sopranos) from Wikimedia Commons, holiday party animal from Adobe Stock. Woman in bathing suit from flickr, Creative Commons license, by Gareth Williams.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010