Can My Employer Do That? Part One By: Jenn S.

In a busy employment law practice, I field a lot of questions from employees who want to know whether an action taken by their employer was “illegal.” In the vast majority of cases, the action of the employer is not illegal per se, though it may have been grossly unfair, blatantly discriminatory, or in extreme bad taste. However, there are situations where an employer is acting illegally and quick action is necessary. The following are some common and some unusual questions from employees who call wanting to know, “Can my employer do that?”

Can my boss tell me to cover my tattoos / cut my hair / take out a piercing? Freedom to express yourself is surely a great right in America.  But, if you want to hold a job you’d best take note of your employer’s appearance standards.  An employer absolutely can enforce rules about how you look – hairstyles and colors, jewelry choices, clothing styles, tattoos and piercings, makeup, shoes – it is all up to your employer, especially if your job involves interaction with the public. In a customer service-oriented position, your personal appearance speaks volumes about your employer, so it shouldn’t be a shock that your employer has a keen interest in how you look on the job.

One of the most common questions I’ve received is “How can my employer allow women to wear earrings but not men – isn’t that gender discrimination?” No, folks. In most instances, the employer can control how its employees appear to customers. Illegal discrimination might rear its head in relation to ethnic or religious head wear but it is a rare case, indeed.

Can my boss deduct my “mistakes” from my paycheck? Employees often ask whether their employer (usually a retailer or restaurant) can deduct accounting mistakes, such as a cash drawer shortage, from their paychecks. The answer is a resounding “NO.” If your employer ever attempts to hold you responsible for a shortage or damage to an item or some other loss by withholding any portion of your pay, you need to go straight to your state’s wage and hour unit to file a claim. The only time an employer can make deductions from your paycheck, other than your regular pay day withholdings, is if they have express permission from you in a signed writing.

Can my employer look through my desk or read my email? Yes. There is no “my” at work. Your employer owns it all and as such, has a general right to access areas that you might consider private. I often counsel employees that they should have no expectation of privacy in the workplace. Do not bring or keep things in the workplace that you do not want your employer to know about, and that includes thing in your email account, voice mail system, and those “secret” files you’ve got stored at the back of your desk. Your employer is not acting in an illegal manner by examining those things – anything that is located at work or is on an employer’s network is generally fair game. Therefore, keep your personal things personal and out of the workplace. Big Brother is watching you.

Can my employer tell me I stink? Seems like a crazy question but – I’ve actually been asked this. A woman called my office wanting to know if it was illegal for her employer to counsel her about her body odor. Coworkers had made several complaints to management about their odoriferous officemate and she had been told that she needed to take action to improve her scent. I’ve also had questions about whether an employer can ask an employee to abstain from wearing particular perfumes or colognes. The general answer is that an employer has a duty to make the workplace comfortable for their employees. So, if one employee is creating a smelly problem that adversely affects the rest of the team’s work environment, the employer is obligated to address and correct the issue. I would even go so far as to say that an employer could use progressive discipline to ultimately terminate an employee who refused to change their personal hygiene habits. Stinky is just not a protected class.

Can my employer fire me on the spot and not pay me what I am owed? It depends. Most states have a 24 hour rule for terminations, meaning that the employee must receive their final pay within 24 hours of an involuntary termination. However, some states allow for employers to make other provisions in their handbooks (such as not paying until the next payday). Check your own state’s laws regarding final pay to be sure of your rights.

WHAT QUESTIONS DO YOU HAVE ABOUT WHAT YOUR EMPLOYER CAN OR CAN’T DO?

These are only a few of the many scenarios that have been thrown my way by employees for legal analysis.  What do you want to know about what your employer can or can’t do?  Simply post your question on the forum, and I will answer in my next installment of “Can My Employer Do That?”

Stop Your Harassing Boss With Your Employee Handbook

The Employee Handbook – Know the Rules and Your Rights

By: Jenn S.

When you first went to work for your employer, it is likely that you received an employee handbook, often referred to as an employee manual or a policy and procedure manual. If you did what you were supposed to do, you read it and then signed a document stating that you read and fully understood the rules and policies stated within. Though such “rule books” often seem like mindless paperwork you can easily plow through during orientation and then forget, they are much, much more than that. Instead of thinking of the employee handbook as all of the things that you can’t do or rules that restrict you, also think of it as what your employer has to so do for you.

Key Employee Policies:  So what are the most important policies and procedures to focus on? Which policies are most often utilized by employers to get rid of employees? Which policies should you make yourself highly aware of in order to keep your job? Frankly, you should carefully read the entire manual from cover to cover and then keep it somewhere where you can easily refer to it in the future. However, if you are not big into reading or your employer’s manual happens to fill numerous binders, try to at least familiarize yourself with the following key policies:

Standards of Conduct: Kind of a no-brainer, but you would be surprised how many people are unaware of the multitude of acts or behaviors that can land you on your employer’s hit list. Most policies regarding standards of conduct give a long laundry list of offenses, from poor performance on the job to violence or drugs in the workplace. The standards of conduct are a good place to start to determine exactly what is unacceptable in your workplace so that you can avoid crossing the line right from the start.

Anti-Harassment / Discrimination Policy: This policy is important for several reasons. One, you should know how to use it in case you are a victim of discrimination or harassment or you witness it happening to a coworker. More importantly, you should determine exactly what your employer is promising to do for you in the event that you make a complaint of discrimination or harassment and then hold the employer to it. If the employer fails to follow its policies, you may very well have a valid legal claim. Finally, you should make yourself aware of exactly what constitutes discriminatory or harassing acts so that you can avoid violating the policy yourself or having a complaint filed against you.

Disciplinary Policy / Progressive Discipline Policy: Again, here is a policy that you not only need to know but must hold your employer accountable to following, should you be targeted for disciplinary action. Determine what the progressive “steps” are for each level of discipline and what acts or behaviors fall under each step. For example, repetitive violations of the attendance policy may first warrant a verbal warning, then a written warning, and then ultimately termination. However, a serious offense, such as insubordination or theft may warrant immediate dismissal. Know your rights under this policy and make sure that your employer is applying it fairly and consistently amongst all workers. Inconsistent application of this policy could be grounds for legal action.

Medical Leave and Other Kinds of Leave: At the beginning of your employment, you should make yourself aware of how your employer handles requests for time off. Most employers are bound by laws that require them to provide you time off for certain medical conditions or the medical conditions of particular family members but beyond such required leave, you should also know how any paid vacation or sick leave is earned and how to request such time off. A handbook will usually also cover other types of leaves such as jury duty or witness leave, bereavement leave, and military leave, amongst many. Educate yourself up front on the leave issue so that you know what you can expect from your employer should the need for a leave arise.

Fraternization & Employee Dating Policy: As I have made very clear in previous articles, dating in the workplace is never a good idea, but some employers actually have policies against it. The most dangerous dating relationship (and usually the one that will violate a no fraternization policy) is one between a supervisor and a subordinate. Such a situation not only creates tension and drama in the workplace but it also creates the possibility of legal liability for the employer and the individual supervisor, should the subordinate decide to file a harassment complaint. But even a relationship between coworkers can violate an employer’s policy so be mindful of the rules and if you happen to find love at work, do your best to keep it under wraps and outside of the workplace.

Non-Solicitation / Distribution Policy: Know your employer’s policy regarding solicitation. Most employers do not allow any sort of solicitation or distribution of literature in the workplace, on work time. Some employers might allow it in the break room, when you are off of company time but generally speaking, it is probably best to leave the Mary Kay and Pampered Chef brochures at home or in the car. If you want to give something to your coworkers, do it after work, off the premises.

Confidential Information Policy: Know what you can and cannot talk about, both inside and outside the workplace. Your job may require that you handle sensitive, confidential information and in such cases, employers often have employees sign a separate confidentiality agreement. But for those in less sensitive positions, you might still run afoul of a confidential information policy, especially if the policy includes the discussion of salary information (who doesn’t like to complain to coworkers about their pay?) or other internal information that should not be shared outside the workplace. This is a policy to know and strictly follow, as violations of it often lead directly to termination.

By educating yourself about your employer’s policies and procedures, you will be much more savvy about what your employer expects from you, as well as what you can expect from your employer.

Avoiding the Axe…Part Two — by Jenn S.

Here are a few more tips for keeping on the straight and narrow at work and avoiding many of the common pitfalls that I have seen result in many lost jobs…

DON’T gossip. It’s hard, I know. I have a hard time following this one myself. Gossip is just so fun. Though talking about other people’s faults and foibles can be great entertainment, it can also cause a lot of problems. Generally speaking, people don’t like to be gossiped about and when word gets around that you’re one of the folks spreading other people’s business to all parts of the office, you might become the target of some unpleasant commentary yourself. Office dramas and rivalries often begin with what some might characterize as harmless gossip and end with someone losing a job or at least being moved or demoted. And be especially leery of the boss or supervisor who pumps you for the office gossip and information on coworkers… You might think that you’re scoring points with management but ultimately, you are demonstrating a lack of loyalty and integrity. Best advice: Steer clear of the juicy gossip mill.

DON’T get sucked into the cancer crowd. Cancer, as an illness, usually starts out small. But those cells multiply and the disease spreads until it overtakes its host OR the host eliminates it through treatment. Same goes for an office “cancer.” One unhappy employee starts grousing about how mistreated they are and how rotten management is and then goes around trying to get other employees to join the grousing. A small group of grousers may then emerge, bitching and complaining about the workplace but not really confronting management on any certain issue. And their negativity spreads and spreads, ultimately affecting employee morale and productivity. Sound familiar? Well, let me tell you that these little cancer groups do not go unnoticed by employers and the treatment of choice is often termination. Instead of being part of the cancer, try being part of the cure. Said another way, if you are unhappy about something at work and know that others are, too, try to actively make a difference, instead of just letting things fester and brew. If you are viewed as part of the cancer crowd, you might just find yourself jobless when management seeks to stop the spreading negativity.

DON’T be the office jokester. There is always one, isn’t there? That person who always has some new joke or story to relate that is highly inappropriate for work but who shares it, anyway? Get this - Save the joking for your non-work friends. Learned a great new joke about some racial minority? Save it. Think it’s funny to shove two oranges under your shirt and pretend that you’re the supervisor who just got breast implants? Do it after work at your apartment, preferably alone. Acting out in the workplace is a sure way to get attention from your coworkers but you may also garner attention from management, who will not likely be amused. Inappropriate behavior in the workplace paves a road right out the door so keep a lid on your inner comedian.

DON’T let your guard down. This tip goes right along with the previous one. Do not let yourself get too comfortable at work. It is tempting, especially when you’ve become very friendly with your coworkers, to let your professionalism slide. In a fashion that is alarmingly reminiscent of high school, we want to be “cool” and part of the crowd and are willing to lower our standards of conduct to fit in. But the bottom line is this…you may feel safe in your work environment to “be yourself” or “be real” but you’re not. Do not drop your guard and think that because you are “friends” with everyone at work that it’s cool to drop f-bombs or pinch your cube-mate’s butt. The familiarity that is created at work can be a good thing, certainly, but it can also backfire…badly. Best advice: Do your best to maintain a professional and friendly demeanor at work and avoid crossing lines into unprofessional conduct.

Podcast #6: 10 Tips for Anyone Facing Termination, Including Negotiating a Severance Package

If you want to listen on your iPod via iTunes, you can use this link (will open iTunes and take you to the podcast): http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741 You can also listen through this website using the player below.

The primary message of Episode #6 of the Hostile Workplace Podcast is “You Are Not Powerless When Facing Termination!”  This episode shows you how to fight back and try to keep your job, PLUS, we cover how to negotiate a severance if you decide to leave.  Negotiating a severance would also apply to anyone who is facing layoffs at their company.

Tips 1-3:
Fight Back by utilizing protected classes and turning the tables on your supervisor.

Tips 4-7:
Slow the Process Down by knowing all your due process rights and using all of them.

Tips 8-10:
Even if You Decide to Leave, don’t just walk away; you have the power to get something out of the company, and ease your transition to your next (better) job.

The ever-popular “Quick-Tip” feature comes straight from our forums.  A community member who is facing termination at his own job has a great tip for anyone dealing with an abusive boss.

I’m Being Harassed at Work! What Can I Do?

By Jenn S.

Illegal harassment in the workplace is no joke.

Workplace harassment involves unwelcome and offensive conduct that is based on race, color, national origin, sex (including pregnancy), religion, disability, or age (age 40 or older). Many states also have other protected classes so it is important to be familiar with your own state’s discrimination laws.

Some examples of harassment include offensive or derogatory jokes, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person’s religion or religious garments, or offensive cartoons or pictures, to name a few.

Keep in mind, however, that not all workplace harassment is illegal. Discrimination laws generally do not prohibit simple teasing, offhand comments, or isolated incidents that are not particularly serious. For workplace harassment to be illegal, the conduct must either be severe (meaning very serious) or pervasive (meaning it occurred with frequency).

One instance of harassing conduct is generally not sufficient to meet the definition of illegal harassment, unless the conduct is very serious, such as a physical assault. If you believe you are being illegally harassed at work, there are several steps you should take right away to protect yourself:

1. Tell the Harasser to STOP:

Be direct – say what you feel. If you are not comfortable with the comments or conduct being directed toward you, be sure to let the actor know – right away. Make it clear that their comments or conduct are unacceptable and that you expect it stop immediately. One caveat: You are not required to confront the harasser. However, it is a great first step if you feel comfortable doing it. Your direct admonishment to the harasser may stop him or her in their tracks without having to resort to more serious measures.

2. Write it Down:

If you are being treated in a way that you don’t think is appropriate by any person at work, write it down. Dates, times, quotes – it is ALL important. The better the documentation, the better your case. Any notes are better than none – steno notebook, computer file, or cocktail napkin – it all works. Most important item – DATE. Don’t leave it out.

3. Tell a Member of Management:

If things don’t change after you’ve told the harasser that you’re not comfortable (OR if you simply do not want to confront your coworker), tell you boss or go straight to HR.

Take a look at your employee handbook and determine how it is that you bring a complaint of harassment. Follow any procedures that are outlined and if your company does not have any sort of procedure outlined, just talk with your supervisor.

Any inaction on their part will only add fuel to your fire, should you actually be forced to bring a sexual harassment complaint through a state agency.

Another caveat: If it happens to be your supervisor that is doing the harassing, go above their head to the next person in control, or any other supervisor-level person that you feel comfortable with, including HR.

Don’t just share with coworkers – You must go to HR or some supervisor to report the problem because an employer will not be held legally responsible for conduct that they did not know about. The only way an employer can know is if you tell them – and that is generally only through HR or management.

4. Demand Action:

Don’t let your employer sit on their laurels when it comes to your complaint – demand action and a result. Be sure to ask your employer for written evidence of their investigation into your complaint, as well as a written explanation of their results and findings.

It is your right to know what your employer is doing to address your concerns and if the employer’s action is ineffective in stopping the harassment, you probably have a case to take to a lawyer or your state agency that enforces discrimination laws.

5. Don’t Wait:

Do not wait to report the problem. As soon as you feel that you are being harassed, make your move, being it confronting the harasser or making a report to management.

Waiting could subject you to further acts of harassment that may worsen in severity or frequency – who wants that? Waiting may also result in keeping certain instances of harassment or discrimination from being considered should you wait too long to file a formal complaint through a state agency or attorney.

So don’t sit around thinking about it – if you feel you are being illegally harassed, stand up and fight NOW.