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?”