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?”

10 Steps of Walking the Plank Toward Termination: Step 2 You Have a New Supervisor

Note: If you missed Step 1 in this series you can read it HERE.

If a new supervisor takes over your department, brace yourself.  New supervisors change everything, and employees HATE that.

What you need to understand is that it is unthinkable to a new supervisor to not change everything.  A new supervisor feels like they need to PROVE that they were the right person for the job.  How do they prove it?  By making changes.

It doesn’t matter to your new supervisor that everything was working just fine, thank you very much.  Your new supervisor is going to make changes for change’s sake.  Your supervisor believes that their changes prove that they are making their mark, shaking things up, raising the bar, blah blah blah.

In your new supervisor’s mind, this is now their kingdom, their way of doing things, their staff, their leadership style, and it’s purpose is to demonstrate to the world that they are awesome.

If you are a man, image a new coach of an NFL team.  Is he going to bring in his own staff?  Is he going to run his own plays or the old coach’s plays?  The new coach is going to completely revamp everything and install his own system.  If the team then wins more games, it will prove that the coach and the coach’s way of doing things are better than the last coach, and the new coach gets all the credit.

What do you call a coach who doesn’t change any systems, uses all the same people, and follows all the plans of the former coach?  A place holder.  Coaches who change nothing are merely “place holders” in between the really high caliber coaches.  You know, the ones with “vision.”

I’m not saying your new supervisor is supposed to see themselves this way, or that it’s a good thing.  I’m not saying that you should accept all these changes; not at all.

I’m just trying to explain what’s going through your new supervisor’s mind.  This really is how they see themselves.

Now, my own spouse and my own mom don’t care much for sports analogies.  Some women do (which is cool), but to women like my spouse and mom, sports analogies just doesn’t make sense.  So I’ll use another example that won’t apply to all women, but might be more meaningful than a sports analogy (can you tell I’m trying hard to not be discriminatory?).

Pretend for a moment that you just bought a house.  Your new house is in a slightly better neighborhood, and is slightly bigger than your current house.  After you sign the loan papers and get the keys, you are free to make any changes you want.

Are you going leave all the same wallpaper that the previous owner put up?  Will you keep the same odd paint colors that the previous owner chose?  Are you going to arrange your furniture in the same pattern and places that the old owner put their furniture?

Of course not!  You want to leave your mark on the house, and make it into your home.  You want to “make it yours” by choosing your own colors, arranging your own furniture your own way.  What would you think of someone who moved into a house and didn’t change a thing?  You’d probably think they were incapable.

And that’s what your new boss is afraid of — appearing incapable of doing the job.  Being capable of doing the job (in their mind) means doing it their way, with their people, in their style, and measuring everyone according to their scale.

Again, I’m not saying your new supervisor should do this.  I just want to warn you; they will do it.  They actually believe that their success or failure as a supervisor depends upon whether or not they change things around.

A new supervisor means new standards, new procedures, new priorities, and probably more new faces.  Also, if you really got along well with your old supervisor, getting a new supervisor will be especially hard.  Your old supervisor knew you, trusted you, and let you do the things you are good at.

Your new supervisor doesn’t know you, doesn’t trust you, and wants you to do the things that will make him or her look good.  And those tasks may NOT be the things you are good at.

If you start to feel or see this kind of conflict, beware.  Especially if you’ve had a few run-ins with your new supervisor, and then he or she begins referring fondly to people from their former organization.  If that happens I guarantee that your new supervisor is thinking about bringing people from their old company over to the new company, your company, and giving those people your job.

New Supervisor = Warning, changes on the way

New Supervisor + Conflict = Red Alert, discipline on the way

New Supervisor + Conflict + Comments about former coworkers = terminations on the way

Have you ever dealt with a new supervisor, or seen one change everything — even though the old way was working?  Tell us about it in the comments section!

Bad News: No Home Sales = No Emergency Cash

Why are people so concerned about their jobs right now?  Because they see the “For Sale” signs going up all around them — and they know the reason is because these neighbors can’t afford their mortgages any longer. Billionaire investor Warren Buffett said Friday the economy continues to be in a recession, by his definition, and will continue to be for at least several more months. (Full Article Here.)

U.S. Fed Chief Ben Bernanke said Friday that “the financial storm that reached gale force” last year “has not yet subsided, and its effects on the broader economy are becoming apparent in the form of softening economic activity and rising unemployment,” . (Full Article Here.)

That certainly appears to be the case in my own neighborhood.  I live in a sub-division that was built five years ago.  There are far more homes for sale right now than any time in the prior five years.  And all those homes are staying on the market longer. With few of any signs displaying “Sold” across the top, families like mine can no longer easily access their equity which serves as the emergency fund for so many people who live without the fat savings accounts that financial magazines breezily discuss — as if everybody has one.

The truth is that most people, myself included, make money from working at my job.  The only other way I “make” money is through the appreciation of my home.  Now, with home appreciation cut off, I have to rely more than ever on my job.  And I know I’m not alone in worrying about keeping a regularly paycheck coming in for my family, because more people than ever ARE losing their jobs.

The U.S. Dept of Labor announced that “Year-to-date layoff figures in 2008 were the highest January-July totals since 2003.”  The region that suffered the most was the Midwest, followed by the South and West.  All areas suffered, just to a lesser degree. The largest economy in the west is California, and that state recorded the highest number of initial unemployment claims filed due to mass lay-offs in the month of July with 33,250 people out of work, largely due to layoffs in administrative and support services and in educational services. The next highest numbers of mass layoff claims were in Michigan (27,672), Ohio (19,402), and Kentucky (11,907). (Full Article Here.)

The Overland Park, Kan.-based firm, the local-phone service provider in 18 states.  And what does it blame these problems on? The slow down in housing, just like everyone else.

People are worried because they are awake and listening, and they see what their neighbors are going through. With most people unable to access the equity in their homes, the regular paycheck becomes the sole and crucial source of income. Now more than ever it’s important to protect your job with every tool available. For example, you can increase your education, so that you offer more skills to your employer.  Or, you can simply work harder and more efficiently, so that management views you as an indispensable part of the company machine. Some people, however, are in a situations where the boss or manager are already deciding who to let go; you may not have time to increase your skills through education or make a new impression through working harder. If you are in the latter case, it’s important that you maximize all the legal protections the law gives to employees. Even “At Will” Employees can protect themselves at work through the use of protected classes.  To learn more about protected classes and how anyone can qualify for their protection you can read my free 7 Part Report on the Secrets of Work Law.  Part one comes to you immediately, and all you have to do is sign up with your name and email address in the green box at the top of this page. My next post will address how supervisors and managers are themselves feeling the stress of the economy; bookmark this page and return Wednesday to learn more about how to respond to the economic stress that your own boss feels.

Podcast #4: Michelle + Dan = Retaliation

Download PDF Transcript

Michell and Dan began their working relationship as friends.  Dan supervised a group of 8 employees; 7 young men plus Michelle.  Michelle was only 21.

Before work each morning, however, she had to drop off her young son at her mother’s house.  As a result, Michelle often arrived between 5 and 15 minutes late.

But Dan was sympathetic to Michelle’s struggles as a single mom.  He was the only other person at work with children.  Plus, how could you not like Michelle?  She worked hard, she was cute, and she could talk “like one of the boys.”  In fact, sometimes she made the boys blush!

Yet, little voice in the back of Michelle’s head kept telling her that the crude sex talk at work wasn’t something to be proud of.  In fact, she admitted to herself that she wouldn’t want her son talking like this.  But Michelle never spoke up… until one day when one of the guys said something so crude and disgusting that even she couldn’t take it any longer…

Listen to the podcast to hear how Michelle and Dan’s relationship changed forever, how Dan nearly lost his job, and to learn if Michelle was able to keep her position with the company.

Just by listening to this true story you will learn about retaliation in the workplace, and also about the importance of timing when establishing retaliation claims.

Show Notes and Links:

During the show I mentioned the blog article by “Careerguyd” about violence in the workplace.  If you would like to read that article yourself just click HERE.

I also mentioned that one of the members of the Forums has her own blog that is worth reading.  That is “HR Wench” and you can reach her blog by clicking HERE.

Finally, I revealed that my ace WordPress customizer is Sherry Dedman of Blog-Solace.  If you have your own blog and would like a technical expert to help you spiff it up, add complex plug-ins, or you just need some advice, you can check out Sherry’s blog about blogs HERE and her forum about the technical side of blogs HERE.

Direct download: UCL_Podcast4.mp3

P.S. Be sure to come to the forums and let me know which states you want added first to the new “State Law Resources” section.

Do You Want Sundays Off Work?

Do you want to have Sundays off? Does your job require that you work on some Sundays, or every Sunday, even though you would prefer not to? Now you can stay home from work on Sundays whether your boss wants to let you or not. But there is a catch:

You have to tell your boss that you are going to stay home and watch TV.

That’s right, a court recently ruled that an employer had to accommodate a worker who wanted to stay home from work on Sundays and watch TV – church TV. The worker, a woman named Kimberly Bloom from Pennsylvania, asked to be excused from her grocery store cashier position on Sundays for “religious reasons.” But she did not want the day off of work to go to church. She wanted the Sunday off so she could stay home and watch church on TV and spend time with family members.

In this case (which is called EEOC v. Aldi, 2008 U.S. Dist. LEXIS 25206), a court ruled that the grocery store where Ms. Bloom worked had to do more than just allow her to try to find a co-worker to voluntarily swap shifts with her. Ms. Bloom had explained to her boss that due to her religion, she could not work on Sundays and she could not encourage co-workers to work on Sundays either (by trading shifts with her). The Aldi grocery store refused to excuse Ms. Bloom from working the entire day unless she found a co-worker to cover her shift. Aldi did, however, say that she could come to work late on Sunday so she could attend a church service before her shift started. Ms. Bloom then explained to her boss that she did not go to church on Sundays. She watched church services on TV, read her Bible, and spent time with her family. Her boss did not believe that Aldi had to excuse Ms. Bloom from work so she could stay home and watch TV and spend time with her family.

The Showdown

The next Sunday came. Ms. Bloom did not try to find a co-worker to trade shifts with her. Aldi did not excuse her from working that Sunday. Ms. Bloom did not show up for her Sunday shift. Then the next Sunday arrived. Again Ms.Bloom did not try to find coverage for her Sunday shift. Again her boss at the store did not excuse her. And again Ms. Bloom did not show up for work. Aldi fired her. Ms. Bloom quickly fired back, filing a religious discrimination complaint with the EEOC against Aldi. As I explain in detail in Work Laws Exposed, filing a complaint with the EEOC or your own state’s Labor Bureau can save you tons of money compared to hiring a lawyer. Even better for Ms. Bloom, the EEOC decided it would pursue her complaint against the grocery chain Aldi in court, and the EEOC’s own lawyers would handle the case.

The Legal Standard

According to federal law, employers must:

“[R]easonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.”

When the case went to court the lawyers for Aldi made three arguments:

<!–[if !supportLists]–>1. <!–[endif]–>Aldi argued that it did “reasonably accommodate” Ms Bloom by allowing her to search for a co-worker willing to trade shifts with her;

<!–[if !supportLists]–>2. <!–[endif]–>Aldi claimed that Sunday shifts were a core job function of cashiers like Ms. Bloom, and that waiving Sunday shifts for her would be an “undue hardship” on Aldi because it would have to waive that requirement for other cashiers too; and,

<!–[if !supportLists]–>3. <!–[endif]–>Aldi argued that since Ms. Bloom did not attend church in person on Sundays, her desire not to work on that day was a personal desire, not a religious conviction.

Bloom v. Aldi: Who Won? Here’s how the court responded to Aldi’s three arguments:

<!–[if !supportLists]–>1. <!–[endif]–>The grocery store’s shift-swapping policy was not a reasonable accommodation because Ms. Bloom “established that she sincerely believes that it is a sin to work on the Sabbath or to ‘support’ another person working on Sundays.”

<!–[if !supportLists]–>2. <!–[endif]–>Aldi did not present evidence that it needed every grocery cashier available to work Sundays in order to remain open on Sundays. Also, Aldi did not present evidence that so many of its cashiers would ask for Sundays off because of their religious convictions that Aldi would not be able to remain open on Sundays;

<!–[if !supportLists]–>3. <!–[endif]–>The court ruled that Ms. Bloom did not have to attend church services in person in order to claim “religious” discrimination. The court stated that “Church attendance or membership in a particular sect is not necessary to assert a [religious discrimination] claim.”

The Fallout

After ruling in Ms. Bloom’s favor, the court went even further and stated that Bloom could seek punitive damages. These are the “punishment” damages that result in multi-million and multi-billion dollar verdicts that make headlines. Punitive damages were possible because Aldi failed to train management about avoiding religious bias.

The court also said that employers must make a good-faith effort to accommodate an employee’s religious based request. Aldi, however, just kept parroting it’s “you find a co-worker to trade shifts with” policy – which is not an effort to accommodate an employee. This case is surprising because the federal courts have historically not been very supportive of employees who ask for “reasonable accommodations” based on the employee’s religion. This court, however, was very supportive of Ms. Bloom’s claims and so was the EEOC. This may be a change in direction, or it may be an anomaly. Subscribe to the Undercover Lawyer’s Insiders List (green box on the right) and I will keep you apprised of whether this trend continues, and of the all the latest tips, tricks, and cases that affect your rights at work.