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It’s SUMMER! Top 4 ways employers can get burned

We've officially entered the season of summer. What are the most common ways employers can get burned? I can think of four right off the bat.

Sexist air conditioning. It seems like a long time since we’ve read anything about this employment law “issue.” The idea was that office air conditioning was set for men. That’s why men are always comfortable and women are always freezing. I agree with the observation, but discrimination?

That one didn’t count. Consider it a bonus. Here are the four real ones.

Burn No. 1: Dress codes. During the summer, it’s hot. Which means some people don’t use the best judgment in dressing themselves for work.

There are two ways employers can go wrong here. First, they may not have a dress code at all, which makes it very awkward for anyone trying to have “that talk” with the employee who comes to work in a skimpy sundress, no underwear, and flip-flops. Or they can have a bad dress code. Bad dress codes include ones that are too gender-specific (e.g., requiring coats and ties for men, and dresses and pantyhose for women) as well as ones that don’t provide enough flexibility.

The best solution, in this era in which separate dress codes for men and women are actually illegal in some jurisdictions, is to fall back on general categories: “casual,” “business casual,” or “business.” Even though they’re vague, most people know what they mean. You can require “modest” attire. You can ban an entire category of clothing, such as “shorts.” (But if you do, you may get this.) You can impose attire rules that are necessary for safety. And, of course, you should expect to occasionally have to make reasonable accommodations for employees’ religious beliefs (“dirty foreheads are ok on Ash Wednesday!”) and disabilities.

If your dress code is “casual,” you may want to consider banning t-shirts with words or pictures on them. That will prevent you from having to decide whether a “Make America Great Again” t-shirt is ok while a “Black Lives Matter” t-shirt is not, or vice versa. If you want, you can make limited exceptions allowing company logos or union insignia.

Transgender employees should be allowed to dress according to the gender with which they identify. But you can still require them to dress appropriately for the gender with which they identify. For example, if your dress code is “business,” then it’s ok to prohibit a transgender woman from wearing a bikini to work because that would violate the “business” part of the dress code. Presumably you would treat a biological female wearing a bikini to work the same way.

Burn No. 2: Pay (and workers’ comp) for employer-sponsored picnics, sports leagues, and other recreational events that occur outside normal working hours. The general rule is that if attendance at a work-related event is mandatory or “expected,” then the employer has to pay non-exempt employees for their time in attendance. If attendance is genuinely optional, then the time would not be compensable.

But remember – if an employee performs work at a company event (for example, grills the hot dogs at the company picnic, or sets the tables, or runs to the brewery to pick up the keg), then the employee must be paid because he or she is actually performing work. And that is true even if attendance is optional.

These same rules generally apply to workers’ comp injuries incurred during recreational events. If attendance is mandatory and the employee gets hurt, then the injury is probably compensable. If attendance is truly optional, then the injury is probably not compensable.

Notice how I keep using “genuinely” and “truly” to modify the word “optional”? Employers shouldn’t make what I call the “Paulie” request: “I sure would hate to see you miss the company pig pickin’, seein’ as how I’ve gotta do your performance evaluation next week . . .” Or the “Michael Corleone” variation: “If you can’t make the company pig pickin’ . . . you’ll disappoint me.” If you use these tactics, attendance at your event is probably not going to be considered optional.

Burn No. 3: Misconduct at employer-sponsored events, such as harassment or alcohol-related incidents. Remember the rules we talk about every November as holiday party season begins? The same rules apply in June, July, and August. If you serve alcohol at the company picnic, consider putting some type of limit on the amount consumed, and be sure to serve plenty of food to go with it. If an employee is harassed at a company function, treat that exactly the way you would treat harassment that allegedly occurred in the workplace during normal work hours. In other words, conduct a thorough investigation, come to your best determination about what happened, and take appropriate action. As during the holidays (or any other time), it’s not an excuse that the harasser was drunk.

Burn No. 4: Vacation pay. The Fair Labor Standards Act doesn’t say anything about vacation pay, but just about every state wage and hour law does. In most states, once an employee accrues vacation, the time or the money is his. (Or hers.) That means if you terminate the employee, or if the employee quits, you must pay out all of the accrued unused vacation. It is not “severance.” You have to pay it even if the employee hasn’t signed an agreement with a release of claims. The timing of the payment varies from jurisdiction to jurisdiction, but be sure you know how to do it properly and in a timely manner.

(Many states, but not all, allow employers to provide for “forfeiture” of accrued unused vacation — also known as “use it or lose it” — but normally the terms for forfeiture have to be in writing and given to the employee before any forfeiture can occur. Also, under many state laws, the employee cannot be required to forfeit any vacation time that was already accrued when the forfeiture document was provided.)

On a somewhat-related point, I was interviewed last week by Allen Smith of the Society for Human Resources Management about “unlimited” vacation policies. I am not a fan. 

Have I ruined your summer? I hope not. Go out and enjoy!

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