Issue 3 - 2009

Two recent cases serve as a reminder: dress codes and grooming policies can have legal risks. In Xodus v. Wackenhut, a job applicant alleged that the company discriminated against him on the basis of his religion when it denied him a security guard position because he refused to cut his dreadlocks. According to the applicant, when he was asked during his interview if he would cut his hair to comply with the company's grooming policy, he responded that he could not due to his "religious beliefs." According to the company, the applicant answered the question by stating he would not cut his hair due to his "beliefs." The company filed a motion to dismiss the claim before trial. The court denied the motion finding the applicant could potentially win in front of a jury since he alleges he said "religious beliefs".

In Burchette v. Abercrombie & Fitch, an African-American woman filed a complaint alleging racial discrimination based on the application of Abercrombie & Fitch's "looks" policy. The plaintiff alleged that her supervisor repeatedly told her to remove the blonde or light-colored highlights from her hair and color her hair black or she would lose her job. Significantly, the plaintiff alleged that the supervisor did not scrutinize the hair color of Caucasian employees, unlike African-American employees and other non-white employees. The court decided that plaintiff had stated a potential race discrimination claim because, according to plaintiff's allegations, the company had applied its dress code/grooming policy to its employees differently due to their race.

Keep in mind that an otherwise lawful dress code or grooming policy could lead to liability if it is not applied uniformly to all employees and treats some employees less favorably than others due to race, national origin, sexual origin, religion, or another protected category. Further, an employer may be required to make exceptions to its policies to accommodate an employee's religious beliefs (e.g., permitting an employee to wear a yarmulke or hijab when head coverings are otherwise prohibited) or an employee's disability (e.g., permitting an employee to wear a beard to accommodate a medical condition which is aggravated by shaving). For more information about any of these issues, please contact any of the shareholders at Simpson, Garrity, Innes & Jacuzzi, P.C. - Paul V. Simpson, Ronald F. Garrity, Laura E. Innes, Marc L. Jacuzzi.

When investigating an internal harassment claim, most employers focus on protecting the "victim" from retaliation. What about other witnesses? A recent Supreme Court case confirms that all witnesses need to be protected from unlawful retaliation.

Metro School District conducted an investigation into whether one of its managers had sexually harassed other employees. As part of the investigation, the District interviewed three witnesses who stated that they had seen and experienced several extreme incidents of sexual harassment. After the investigation, the District took no corrective action against the manager. However, all three witnesses who made statements about the manager's sexual harassment were terminated. One of the employees filed a retaliation claim under federal law, Title VII. In response to the lawsuit, the District argued that federal law only protects employees who either (1) initiate or instigate a harassment claim, or (2) participate in an investigation following a formal EEOC complaint. In other words, the District argued that the statements made in the course of the employer's internal investigation were not protected. (Crawford v. Metropolitan Government of National Davidson County, U.S. Supreme Court 2009).

The District lost, of course. All witnesses are protected. When conducting an internal investigation, are you advising witnesses as to their retaliation protections? Are you advising other employees that witnesses are protected? Are you monitoring the environment (including retaliation issues) after the investigation is concluded? Investigations must be handled correctly to help protect employers from liability. If you need assistance in designing an investigation of alleged misconduct, implementing and following-up, please contact any of the shareholders at Simpson, Garrity, Innes & Jacuzzi, P.C. - Paul V. Simpson, Ronald F. Garrity, Laura E. Innes, Marc L. Jacuzzi.

The California Labor Code prohibits employers from requiring releases of legal claims related to wages due. However, employers can consider requiring employees to authenticate their time records. Consider the following illustrated language for employees' time records:

BY SIGNING BELOW, I REPRESENT THAT ALL THE TIMES INDICATED ABOVE ARE TRUE AND CORRECT, AND THAT I HAVE NOT WORKED OUTSIDE THE INDICATED TIME PERIODS. BY SIGNING BELOW, I FURTHER ACKNOWLEDGE THAT I HAVE BEEN AFFORDED OPPORTUNITY TO TAKE TWO (2) TEN-MINUTE BREAKS EACH WORKDAY. I UNDERSTAND THAT IT IS MY RESPONSIBILITY TO REPORT TO MY SUPERVISOR IF I NEED ASSISTANCE IN SCHEDULING A REST BREAK. I ALSO ACKNOWLEDGE THAT THE MEAL BREAK LISTED ABOVE WAS DUTY-FREE AND THAT IT IS MY RESPONSIBILITY TO REPORT TO MY SUPERVISOR IF I NEED ASSISTANCE IN GETTING DUTY-FREE FOR THE MEAL BREAK.

Beware, however, requiring such an acknowledgement if you know or should know that employees are working hours not recorded, working through meals or are not able to take breaks. Requiring employees to sign a statement of hours which you know to be false is a violation of the Labor Code.

Of course, employers should seek legal counsel when developing language specifically for their companies. For example, some employers must enable employees to take breaks (e.g. employees on an assembly line), and therefore the above illustrated language would not be appropriate for those employers. Wage and hour compliance is highly technical and the focus of legal scrutiny in today's environment. The shareholders at SGIJ can help you with these and other employment law questions.