TATTOOS AND PIERCING IN THE WORKPLACE /
EMPLOYEE COMPLAINTS / Comment on Spanish Contracts
April 6, 2013
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Question
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Dear Judge Ruth:
As an employer, I want my employees to reflect an image of professionalism. However, more and more, I am noticing that employees are getting visible tattoos, body piercings, ear and nose “plugs” and the like. I hate all of the above. What can I do?
WM
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Answer
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Body art and piercings are personal expressions. However, in general, you have a great deal of discretion with respect to appearance standards. You can require that “ink” and piercings not be visible. There is no legally established right for workers to display them in the workplace. Unless the employee can establish that they are indicia of religious or racial expression, tattoos and piercings are not protected under federal anti-discrimination laws. Therefore, you are entitled to establish policy. The best policy is one that explains itself in terms of reasonable business needs. Just as a manufacturer may require assembly line workers to wear protective clothing and to tie back his or her hair for safety reasons, a pediatrician may ban hanging earrings or nose rings which could be torn out by a recalcitrant youngster or prohibit nail extensions which could harbor bacteria.
The typical approach in establishing policies is a midground which limits restrictions to employees who have contact with the public and requires that the tattoos and piercings not be visible. This is the most practical to implement since it doesn’t restrict employee self-expression but simply limits what they can show at work. A policy which provides that, if an appearance standard is violated, the employee will be asked to correct it, including going home to change into clothing that covers the tattoos and/or piercings, puts workers on notice as to the consequences of their actions. The policy should be enforced just as you enforce other behavior policies. If your rules call for progressive discipline, then you should follow the same steps for violation of the appearance policy, beginning with verbal warning and proceeding to written warning, etc.
Caveat 1: If the tattoo or piercing represents a genuine religious or racial expression, then it may be protected under the federal anti-discrimination laws. The rights of observant Jews to wear yarmulkes in the workplace or of Sikhs to wear their turbans and beards have been upheld in the courts, except where such outward manifestations of belief could pose health or safety risks in particular occupations. There is limited case authority on this point but I believe that the courts will differentiate between a volitional outward manifestation of belief (i.e., a tattoo of Jesus on one’s arm) which is not religiously mandated and tattooing which is required of members of a bona fide religious or racial group.
Caveat 2: Be sure to enforce your policy consistently to prevent claims of unfair application or discrimination against a member of a protected class under the law.
Update your existing (or non-existing) workplace appearance policy?
Contact Judge Ruth Kraft at (516) 747-6700 ext. 326 or at RKraft@Kirschenbaumesq.com. Judge Kraft chairs the Labor and Employment Group at Kirschenbaum & Kirschenbaum.
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EMPLOYEE COMPLAINTS
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Dear Judge Ruth:
I am learning a lot from your newsletter. I am confused on the topic of complaints. Why is it considered a good idea to encourage employee complaints? Won’t it automatically put me into a defensive position? And, if employees know that they can speak up, then won’t they gang up on me?
LG
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I understand your perspective. Employers are taking it on both cheeks these days, between the economy, increasing governmental regulation at every level, and the need to boost productivity while lowering prices.
It is true that one complaint may lead to another and that, when workers exercise their 1st Amendment rights to speak collectively about the workplace, a light bulb may go on about seeking legal redress. However, I believe that the risk of maintaining a “stiff upper lip” policy and discouraging complaints can be far more dangerous to your company.
In the best of all possible worlds, I don’t think that most employers would disagree with the need for formal internal complaint mechanisms. And, many of you have employee manuals or protocols already in place. But, in addition, there are good reasons not only to adopt such a policy but to encourage workers to actually use it.
Retaliation as a cause of action brought by plaintiffs’ counsel is on the rise and it possible to prevail on this basis even if the underlying complaint is without merit. If workers are encouraged to make internal complaints without fear of retaliation, you may be able to correct a misunderstanding or implement corrective action before they contact counsel, the media or regulatory agencies. Moreover, the best affirmative defense to a retaliation claim is to demonstrate that the employees routinely file complaints and that you follow up by investigating and resolving those issues. If you do not formally record complaints or shove problems under the rug, you will not be able to take advantage of this defense.
Another affirmative defense that has great merit is to assert that the employee’s claim should be barred because he or she did not take advantage of your known complaint procedure. In sexual harassment suits, plaintiff may argue that she did not do so because she believed that you would not have taken remedial action or may have retaliated. If you can demonstrate a pattern of address problem situations and the absence of retaliation, then you will be in a much better position.
For starters, do you have any anti-harassment, anti-discrimination and non-retaliation policy? This is such an important issue that it warrants a separate signoff in addition to inclusion in your employee handbook. Furthermore, so there can be no claim that the employee didn’t quite understand its contents, our new policy is available in a combined English/Spanish version. We have the ability to translate any of our contracts or forms into Spanish upon request. To purchase this form, contact our Contract Administrator, Eileen Wagda, at (516) 747-6700 ext. 312 or at EWagda@Kirschenbaumesq.com.
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Comment on Spanish contracts from Feb 12, 2013 article
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Ken
I have had this issue ruled on several times in S Claims Court. Sub claims they do not ‘speak English’, if the Contract is not in a language THEY speak then it is NOT binding in CA. IF they do not speak English, then THEIR interpreter is responsible for interpreting, hence my sales rep’ Does not speak Spanish” so if they ‘Do not speak Spanish”, then who interpreted, Sub will confirm that either they had their person interpret, OK their problem, not mine, or they claim the signed up with someone whom they could not understand.. yeah right! Even more absurd when we come out and connect, they give us the call list, make a payment… yeah right! Either way, they lose. The WRONG action is to have a contract in their language, or we try to interpret. Then they can claim that the Rep does not speak read that language. Best action, ENGLISH, their interpreter.
Bruce Boyer
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Response
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The consumer law in most places that addresses the issue is that the contract has to be in the language used by your sales person to sell the job. Your sale person should not agree to interpret or explain contracts. The better practice is to suggest to the subscriber that they should seek out their own counsel or interpreter. If this is an issue in the area where you conduct business it may not be a bad idea for your sales person to make a record of the language used for the transaction. Having the subscriber sign off on that may be helpful but not necessary.
We have created Standard Forms in Spanish. Call our Contract Administrator Eileen Wagda for details 516. 747. 6700 x 312
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