From time to time, I’ve been fortunate to have several guest bloggers contribute their thoughts on Connecticut employment law. Today, I’m happy to continues that trend with a post from my Pullman & Comley colleague Michael "Mick" Lavelle.  Mick has broad trial experience, both jury and non-jury, before state and federal civil courts and before administrative agencies that regulate employment. He successfully litigated the case of Bridgeport Hospital v. Commission on Human Rights and Opportunities, et al., 232 Conn. 91 (1995), in which the Connecticut Supreme Court curtailed the commission’s ability to award damages against employers. He serves as a special master for the U.S. District Court.

Today, Mick addresses the subject of dress codes and highlights two cases outside Connecticut that highlight the approach of the EEOC in such cases.  It’s definitely worth keeping an eye on to see whether the EEOC and private attorneys continue pressing the issue.

Dress code issues have certainly evolved since the days when the controversy was whether women could be required to wear dresses instead of slacks or pant suits. 

Today’s issues involving body piercing and tattoos are for the most part settled in a common-sense way. Employers may impose a professional appearance standard on employees who deal with the public, so that visible body piercingcourtesy morgue files must be removed and visible tattoos must be covered up while at work.

But recently the Equal Employment Opportunity Commission has supported employees who claim that such body decoration has a religious significance. 

In EEOC v. Papin Enterprises, 2009 WL 961108 (M.D. Fla), the employee, a clerk in a sandwich shop, claimed that wearing a nose ring was a practice of her religion. 

Although the concept that an employer has the right to control its public image is usually sufficient to sustain the dress code requirement, the court noted that the shop manager simply told the employee to remove the nose ring when they were visited by a senior official from the franchise headquarters, an approach which contradicted the “public image” argument and resulted in denial of the employer’s motion for summary judgment.

In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D. Wash.), the employee was a server in a restaurant who had tattoos encircling his wrists. He received the tattoos during a religious ceremony after undergoing a rite of passage in “Kemetecism”, a religion with roots in ancient Egypt. In this belief system, intentionally covering the tattoos is a sin. 

This court also denied summary judgment for the employer, ruling that because of the relatively insignificant appearance of the tattoos, the question of whether it was an undue hardship for the employer to allow the “display” of the tattoos was an issue for a trial.

Employers should note that a ban on facial piercings and visible tattoos remains legally permissible; these are unusual cases which do not require that employers change their dress codes for employees who deal with the public. 

However, these cases reinforce the importance of the basic advice that dress codes, and work rules generally, should be enforced consistently and equally, and that unusual situations call for measured consideration rather than abrupt (and possibly illegal) decision-making. 

The Memorial Day Holiday Weekend has turned into the "unofficial" beginning of the summer season (though it hasn’t exactly felt like summer yet in Connecticut).  With that, there are a whole host of issues that also make an annual re-appearance.  Here are a few to think about. 

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use "Paid Time Off", while other companies specifically designate that employees can use vacation time.  But can the employer do anything to regulate it? Yes, particularly the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a "use it or lose it" policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Friday Sick Days — There’s nothing quite as intoxicating in the summer as the long three-day weekend.  And, with that comes "Friday Fever" .  The symptoms? An otherwise healthy employee calling in on a beautiful sunny Friday.  What are some questions to consider?

  • Does it make sense to change to a simple "Paid Time Off" policy that doesn’t distinguish between vacation and sick time?
  • What documentation do you ask employees for when out on sick days?
  • Do you pay employees for a paid holiday, like Memorial Day, if the employee has been absent the day before or after such a holiday, without approval?

Summer Parties and Office Dress — As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that "work" also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees? 

These questions are by no means exhaustive, nor are the topics, but with summer season here, it’s too easy to just "pass" on the issues for a later time.  Considering these issues now, before they arise, can help prevent some a serious summer heartburn later on.