Employees, Tattoos and Piercings…Oh My, Now What?



By Karen L. Gabler, Esq.
Introduction by Gary Wartik
February 15, 2015

Introduction:

Retail and service businesses are receiving an increasing number of employment applications from a growing group who distinguish themselves with tattoos, nose rings, unkempt beards and other “adornments.”  Many employers are concerned about customer responses to employees with such appearances, believing employees with direct customer contact may not be good for business.

Some of our retail and restaurant clients are not sure, within the ambit of state and federal law and regulations, how to handle the applications.  Accordingly, we asked our friends at the law offices of LightGabler, LLC in Camarillo, CA, employment law specialists, to offer some guidance.  Karen Gabler, one of the senior partners of the firm offers us some direction on the issue.

Report:

As tattoos and multiple body piercings become more “mainstream,” employers are increasingly faced with the question of whether they can lawfully restrict tattoos and body piercings in the workplace based upon business considerations or personal preference.

California law provides employers with the flexibility to establish “appearance” rules in the workplace, as long as those rules do not adversely impact protected personal characteristics.  Employers are entitled to restrict visible tattoos and body piercings, as long as those restrictions are based upon legitimate business concerns and not upon any discriminatory practice.

In developing a company-wide grooming/appearance policy prohibiting tattoos and piercings, employers should consider the business reasons behind any such prohibitions, as well as the specific job duties of the individual employees.   For example, an employer might wish to prohibit visible tattoos for employees who interact with customers.  In that case, a janitor who works after hours and never interacts with customers might be permitted to have visible tattoos, whereas a customer service representative might be restricted from having visible tattoos.

Legitimate safety considerations may form a valid basis for the restriction of body piercings.  For example, an employer may prohibit dangling or hoop earrings in a factory environment where jewelry could be caught on machinery.  Naturally, it would be more difficult to claim that visible tattoos pose a safety risk in the same environment.

Grooming/appearance policies also must be gender-neutral and consistently applied to appropriate personnel.  For instance, if an employer chooses to restrict piercings to no more than two piercings per ear, that standard must be applied to men and women on an equal basis, rather than permitting women to wear earrings but restricting men’s ability to do so.

Where an employer’s rules against visible tattoos or piercings implicate an employee’s sincerely-held religious beliefs or practices, the employer cannot restrict the employee unless it would cause undue hardship to the employer.  Instead, the employer must consider reasonable accommodations to address the employee’s religious needs.  Begin by having an interactive discussion with the employee about the basis for the tattoo or piercing, ask whether religious beliefs would prevent the employee from covering the tattoo or removing the piercing, and brainstorm on whether there are reasonable accommodations that would allow the employee to express his religious beliefs.

Employers should implement grooming/appearance policies addressing any restrictions the employer wishes to impose, to avoid misunderstandings or inconsistent application of any restrictions.  Those policies should also include a statement that if any tattoo or piercing implicates religious beliefs or practices (or other applicable protected characteristic), the employee should see management or human resources to discuss the possibility of a reasonable accommodation.

For questions regarding appearance and grooming policies, please contact Karen Gabler at 805-248-7207 or kgabler@lightgablerlaw.com.

Karen L. Gabler is an employment attorney at LightGabler LLP, a business law firm in Camarillo.  Karen represents employers and management in all aspects of employment law, providing advice and counsel to business clients and defending employers against employee complaints.  For more information, go to www.LightGablerLaw.com.

An Employee Handbook – Don’t Operate Without It



An Employee Handbook – Don’t Operate Without It

By Gary Wartik
November 20, 2013

An employee handbook or employment manual is a book given to employees that contains information about company policies and procedures.  The employee handbook is an excellent document in which to bring together employment and job-related information which employees need to know, regardless of the company’s size.  Information such as holiday arrangements, company rules, disciplinary and grievance procedures, confidentiality requirements, use of the Internet, policies related to sexual harassment claims, and others are musts.

The handbook can also provide useful information to new staff as part of the induction process.  If the employer is covered by the U.S. Family and Medical Leave Act of 1993 (FMLA), generally fifty or more employees, a handbook must have information about FMLA.  While content will vary among businesses, a well written employee handbook gives clear advice to employees and creates a culture where issues are dealt with fairly and consistently.

Need for employee handbook

Federal and state laws and the growing number of cases of employee-related litigation against management, especially in California strongly reflect that a written statement of company policy is a business necessity for companies of any size.  To be direct, it either avoids litigation or at least contributes to management responding to claims by unhappy employees.  An effective handbook is an obvious and relatively inexpensive answer to the question, “How does a business protect itself against lawsuits based on employer and employee behavior?”

There are several key elements that businesses should consider before implementing an employee handbook.  One of the most important aspects of any handbook is that the document be kept current.  The California legislature offers an annual barrage of employment law changes, so the handbook must be reviewed annually.  As well, if a company has a number of employees in which Spanish, for example is the primary language, then it is recommended that the handbook be published in both English and Spanish.

Employee handbooks set expectations

Employee handbooks set forth expectations between the employer and the employee.  A handbook is a tool to provide clear boundaries for the employee and to let the employee know what his rules and benefits are. Employers can clearly communicate to employees how the employees should behave, what they should wear and how they will compensate, discipline and reward employees. Employees will understand their responsibilities and have a reference point for how to do their jobs and maintain their status.

Employee handbooks protect employers

Clear policies and procedures can prevent liability.  For example, California courts may consider an employee handbook to be part of the employment agreement, even if the employment relationship is “at-will.” If an employee has a dispute with an employer or gets a bad performance review, he may try to use the employee handbook as leverage or to prove some deficiency on the employer’s part. A well-written and clear handbook can protect an employer; it sets forth a structure so when issues arise, neither the employee nor the employer will be surprised by the outcome.

Vision Economics recommends that employers retain specialty employment law firms to write new employee handbooks, or at least review what may be prepared internally.  Please contact our office if a referral is needed.  For companies with existing handbooks, an annual review by a competent law firm is highly recommended.