Strictly Business

Monday, Jan 20 2014 04:00 PM

ROBIN PAGGI: Some workplace dress codes run afoul of the Labor Relations Board

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    By Michael Lopez

    Robin Paggi is a human resources consultant with worklogic legal solutions.

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BY ROBIN PAGGI Contributing columnist

According to my husband, I spend way too much money on fashion magazines to read what fashion experts say a woman of my age, weight and height should and should not wear (fashion "do": wear color-blocking patterns to make me look slimmer; fashion "don't": wear capris, which make me look even shorter).

Employers who could not care less about fashion should read on because the National Labor Relations Board, the independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions, has been busy in the last few years establishing its own list of fashion "don'ts" regarding employers' dress code policies.

Why does the NLRB care about employers' dress code policies? Because it wants to ensure that employers do not have any policies that could be construed as limiting their employees' rights under Section 7 of the National Labor Relations Act to engage in "concerted activity" to further better "working conditions." That includes policies that restrict employees from wearing clothing and accessories that express their feelings about their employment.

Some fashion "don'ts" from the NLRB include:

Telling employees they can only wear caps that have the company logo on it. According to an article on www.jdsupra.com, Quad Graphics Inc. (in Nevada) implemented a policy prohibiting employees from wearing baseball caps without the company logo on them "for safety reasons, to reduce gang activity and to facilitate employees' interactions with customers." The NLRB ruled that the policy was unlawful because it prevented employees from expressing pro-union sentiments.

Disciplining employees for questioning or complaining about dress code policies . According to an article on www.joelustig.wordpress.com, there was a rumor that Wyndham Resort Development Corp. (in Nevada) was going to require male employees to tuck in their "resort casual" shirts. After an employee became agitated when questioning the VP of in-house sales about it in front of co-workers, he was given a written warning and then terminated. The NLRB ruled against the employer because the employee's complaining was tantamount to engaging in "concerted protected activity."

Placing overly broad restrictions on what employees may wear at work. According to case documents found at www.nlrb.gov, Alma Products Company (in Michigan) ran afoul of the NLRB because of disciplining an employee for wearing the "slave shirt."

Created in 1993 during union negotiations, the shirt had the word "slave," an image of a ball and chain, and employees' time clock numbers displayed on the back. Some employees still wore the shirt with some regularity until 2005 when the company hired a new CEO. Considering the shirt to be racially offensive, he ordered the HR manager to draft a new dress code policy that stated that "clothing displaying vulgar/obscene phrases, remarks or images which may be racially, sexually or otherwise offensive and clothing displaying words or images derogatory to the company will not be allowed in any facilities."

An employee subsequently wore the shirt to work and was docked pay while he was sent home to change. The union then filed a complaint against the company for violating the employee's right to engage in a concerted protected activity, and the NLRB agreed with the charge.

While some of these examples involve unionized organizations, these fashion "don'ts" apply to non-union businesses as well. The NLRB will get involved in any business that appears to dissuade its employees in any way from expressing their opinions about the terms and conditions of their job, even with their clothing.

And, while the NLRB is not the "final word" on dress code policies and these cases might be "outliers," employers still need to be aware of the agency's positions.

So, here's a fashion "do": ensure your dress code policy is as specific as possible, clearly states the legitimate business and safety reasons for its existence, and lets employees know that it is not intended to interfere with their right to engage in protected communications. Doing so can help you avoid some serious fashion faux pas at work.

-- Robin Paggi is the training coordinator at Worklogic HR Legal Solutions. Reach her at rpaggi@worklogiclegal.com. These are her opinions, not necessarily those of The Californian.

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