Piercings & Tattoos: Addressing Body Art in a Dress Code Policy

Until recently, tattoos were popular among just a few select groups and piercings were typically limited to the ears. But, times have changed. Now, tattoos and piercings, also known as body art, are being worn all over the body by all demographics.

The increased prevalence of body art can create a conflict of interest in the workplace since many employers consider visible body art to be inappropriate. A well-crafted dress code policy can be an effective means for dealing with the issue. 

The following are 9 guidelines for addressing body art in a dress code policy: 

1.    Base the policy on your business needs. When developing a dress code policy, it's important to consider company culture and the image that you want to project to clients, the public, as well as current and potential employees. As with all policies, your dress code should be based on legitimate business needs.  

2.    Evaluate possible restrictions. In general, employers have a lot of latitude in imposing restrictions on body art. After considering company culture, you will want to decide what you deem to be appropriate and inappropriate for your workplace. For instance, will you permit visible body art, or will you require employees to cover tattoos and piercings? You might also decide that you want to place different restrictions on employees who have contact with the public versus for those who don't.

3.    Consider state and federal anti-discrimination laws. Employers are required to provide a reasonable accommodation for an individual's sincerely held religious beliefs or practices, absent undue hardship. Since some religious practices involve tattoos and/or piercings, employers may be required to provide a reasonable accommodation for an employee's body art. Although employers have broad discretion in creating and enforcing dress code policies, they must be sure to provide a reasonable accommodation as appropriate and avoid policies that are significantly more burdensome on a protected class of employees.

4.    Provide examples of inappropriate body art. However stringent you decide your policy will be, it's important to provide examples of acceptable and unacceptable forms of body art. For instance, graphic, violent or otherwise offensive tattoos should never be visible. Encourage employees to ask questions if they have any doubts with regard to what is and is not appropriate.

5.    Provide guidelines for covering body art. If you wish to restrict visible tattoos and/or piercings, consider requiring that employees conceal them. Most body art can be covered with some type of clothing. For example, an employee with a tattoo that runs the length of her arm can conceal the tattoo by wearing a long-sleeve shirt while at work.

6.    Promote safety.  Identify jobs in which body art may pose a safety risk and establish safety guidelines as appropriate. For instance, employees who work with equipment should be required to remove jewelry, including piercings, prior to beginning their shift. 

7.    Explain the reasons for adopting the policy. Employees who have body art most likely see it as a form of self-expression and may initially object to any sort of restrictions. Explaining your business reasons for adopting the policy may help when implementing it. In doing so, it is important to communicate that the policy is part of your efforts to maintain a professional and safe working environment.

8.    Consider the effect on recruiting. If you do impose restrictions, ensure that your policy still gives you the flexibility to recruit and retain qualified employees. After implementing your policy, check to see if it has resulted in higher turnover, lower employee morale, or greater difficulty in recruiting talented workers.

9.    Be consistent.  Establish procedures for enforcing your dress code policy and train supervisors how to enforce it. Remind supervisors that they have a duty to enforce all policies consistently, regardless of their views on body art.

While body art has grown in popularity, employers may have legitimate business reasons for establishing restrictions on their visibility within the workplace. Unless otherwise prohibited by law, several options are available for addressing body art, including banning inappropriate body art, prohibiting employees with regular customer contact from having visible piercings and tattoos, or requiring all employees to conceal their body art.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com

Important Considerations when making Layoff Decisions

During these turbulent economic times, many companies are starting to weigh the pros and cons of scaling down their workforce. When money is tight, employers often look to their biggest expense – their employees – in order to cut costs. Expenses relating to employee wages, benefits, and other employee overhead can have a significant impact on the bottom line.

Because layoff decisions aren’t often as cut and dry as other types of terminations, many employers faced with the decision are challenged with some tough questions related to the process; questions like, “How do we decide who to layoff and who to keep?” or "Which state agencies must be contacted?" and “What legal risks should be considered?”

The steps outlined below will help to answer some of these very questions and provide guidelines to follow when faced with a layoff situation:

1.    Consider the alternatives. A knee-jerk reaction may result in a quick layoff and a quick buck, but it may not be the best solution long-term. Before making a layoff decision, always consider the alternatives. Layoffs should typically be a last resort, after other cost-cutting measures don’t pay off. Work sharing, for example, is one option that may help the company save some money and still allow employees to retain their jobs. Work sharing allows two employees to share the responsibilities of a full-time employee. Company-wide pay cuts may be another feasible alternative to a layoff. Although not appealing to most employees, for some, it’s better than having no job at all. A reduction in pay works best if it is shared by all employees, including management. Another option is to offer those nearing retirement exit incentives if they choose to resign early. Employers want to be cautious with this approach, however, to avoid claims of age discrimination.

2.    Layoff criteria. It is recommended that prior to layoff employers develop objective and justifiable criteria for selecting employees to let go. Some factors you may want to consider in making a layoff decision include seniority, job performance, leadership potential, and one’s overall value to the company. Just remember, any decision you make must be supported by a legitimate business need.

3.    Seniority. When seniority is considered to be the criteria for making layoff decisions, an employee’s tenure will determine his or her susceptibility to a layoff. Although length of service is recommended to be part of the layoff decision, it should be coupled with other factors such as an employee’s performance history.

4.    Performance and skills. The knowledge, skills and abilities (KSA’s) needed for a company to survive after downsizing, and to ultimately remain competitive in the marketplace, may also help guide a layoff decision. Competencies such as resiliency, leadership and organizational commitment, for example, may all be particularly valuable to the company. It may be wise to retain employees possessing the skill sets that are desired company-wide. In addition to specialized skills, job performance is often used to make layoff decisions. When performance is used during the decision making process, be sure to review past performance appraisals and other records of performance history before making a layoff decision.

5.    Voluntary layoffs. To avoid making the difficult decision themselves, some employers offer “voluntary layoffs” by informing employees of their options. For example, an employer may approach their employees and offer them to either remain with the company and take a pay cut or allow them to resign and take a severance package. Offering attractive exit incentives, such as severance pay, continued health insurance, and pay for unused paid time off, may encourage employees to make the decision to leave the company voluntarily. However, this approach may also have some drawbacks; most notably the potential for star employees to take you up on your offer.

6.    Severance packages. Although employers typically have no obligation to offer severance packages to exiting employees, some employers may decide to. Severance pay usually equates to a week or two of pay for each year of service and can be provided in a lump sum or paid over a period of time. In some instances, a severance package may also include other extended benefits such as continued health insurance or outplacement assistance.

7.    Outplacement services. Employers may want to consider providing affected employees with outplacement services. These services are designed to help terminated employees prepare for a new job and typically provide assistance in resume writing, interview skills, job placement, and career counseling.

8.    Ensure employees are informed. Employers can help make the transition between jobs a bit easier by providing employees with helpful information on income support assistance programs such as unemployment compensation, and health insurance continuation options, such as COBRA.

9.    Paychecks. Each state may have their own requirements relating to issuing an employee’s final paycheck. In some states, employers may be required to provide employees their final paycheck at the time of layoff; other states may allow employers to provide the final paycheck at the next scheduled payday. Check your state requirements in the Layoffs section of our State & Federal Laws database.

10.  Legal considerations. As with any employment decision, employers want to tread carefully before following through with a layoff. To avoid discrimination claims, all decisions should be made based on objective criteria and supported with documentation. It’s recommended that equal employment opportunity (EEO) implications are considered in order to ensure that employees of a protected class (i.e., minorities, those over the age of 40, the disabled, or veterans) are not disproportionately impacted by a layoff decision. Further, when large number of workers are laid off at once, state law may require that employers notify their state Department of Labor. Check your state requirements in the Layoffs section of our State & Federal Laws database.

If downsizing is the best option for ensuring the company stays afloat during tough economic times, there are a variety of considerations employers should make in order to protect themselves. Establishing criteria that will be used when making layoff decisions should always be your first course of action, followed by considerations relating to whether or not to offer severance packages, outplacement assistance, or exit incentives.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com

Smartphones and After-Hours Work: FLSA Considerations

A growing number of employers provide smartphones and other mobile devices to help employees stay connected to coworkers, clients, and their work. While this may be a boon to productivity, it can also create challenges for compliance with the Fair Labor Standards Act (FLSA). Namely, if nonexempt employees are using smartphones for work while off the clock, it may lead to violations of the FLSA’s pay requirements.

The following are guidelines for helping to create clear policies and procedures for after-hours work:

1.    Develop a written policy. If you provide smartphones to employees, you should have a written policy covering your rules and expectations on the use of these and other mobile devices. Specifically, the policy should address whether the use of mobile devices after hours is expected, required, permitted, or prohibited. To help ensure employees are aware of your stance on the issue, require all employees to sign an acknowledgment that they have read and understand the policy. The policy (like all other policies) should be enforced on a consistent basis.

2.    Consider providing to exempt employees only. Whenever possible, employers should consider providing smartphones only to exempt employees. This can help to alleviate pay concerns related to after-hours work, since exempt employees are generally paid a set salary regardless of the amount of hours worked. In doing so, take the opportunity to make sure that your exempt employees are classified properly. To be classified as exempt, employees must generally satisfy three tests: a salary-level test (the amount they are paid), a salary-basis test (how they are paid), and a duties test (the work that is performed). Before providing smartphones to nonexempt employees, analyze whether there is a strong business reason for doing so.

3.    Limit use to established business hours. If smartphones or other mobile devices are provided to nonexempt employees, employers should consider expressly prohibiting use of the phones during off-duty hours. To help enforce the policy, controls should be in place to restrict or prevent remote access to company systems during nonworking hours. Consider working with your IT personnel to limit and monitor remote access. Employers should also provide employees guidance on how they should handle situations in which they receive a call or email from a client, coworker, or supervisor during off hours (e.g., only read or respond in emergency situations). Another option is to require nonexempt employees to turn off company cell phones when they leave work or require the devices be left at the office.

4.    Require prior approval. Consider requiring nonexempt employees to obtain written permission from their supervisor before using their mobile device for work during off hours. This can help to limit the occurrence of after-hours work.

5.    Consider limits on personal devices. In addition to placing restrictions on the use of company-issued cell phones, employers should consider developing rules around the use of personal phones and computers to respond to work-related calls or email. Let nonexempt employees know that the use of personal devices to perform work-related tasks must be recorded as hours worked.

6.    Require strict recordkeeping. Employers must maintain accurate records of hours worked for all nonexempt employees. To this end, employees must be aware that checking work email is considered hours worked and that they are responsible for reporting all time spent working. If the regular timekeeping system cannot be used to record after-hours work, employees should be instructed on how to promptly report such hours.

7.    Mandate timecard approval. Nonexempt employees should be required to review and approve their timecards at the end of each pay period and notify their supervisor if there are any mistakes. This provides the employee with another opportunity to report after-hours work and can help ensure the employee is paid for all time worked.

8.    Compensate for all hours worked. Nonexempt employees must be paid for all hours worked, regardless of whether the employee works without prior approval. Additionally, if their hours exceed 40 in a workweek they are entitled to overtime pay. Violations of the company policy on after-hours work should be addressed as a disciplinary matter without affecting the employee’s regular or overtime pay.

9.    Train supervisors and employees. Training should address the company’s rules and procedures related to after-hours work and remind employees that such time must be reported. Supervisors should be trained to set realistic deadlines that don’t require after-hours work and to spot and respond to situations in which employees are working off the clock (e.g., the supervisor receives a report via email from an employee at midnight and the employee hasn’t recorded the time on his/her timesheet).

10.  Conduct regular audits. Hours worked, recordkeeping, and employee classifications should be audited on a regular basis. This review may include interviews with supervisors and employees, an analysis of remote-access logs, and an examination of company cell phone records.

Mobile devices have resulted in productivity improvements for many businesses, but employers must be mindful of the FLSA’s requirements. Controls should be put in place to help limit after-hours work and if such work does occur, employers must ensure employees are properly compensated.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com