During our recent webcast, Can My Company Ban That?, we received a number of questions from attendees on dress codes, religious accommodations, pay discussions, and social media use. In this Tip, we address the most frequently asked questions.
Dress Codes and Religious Accommodations:
Background: Title VII of the Civil Rights Act requires covered employers to provide reasonable accommodations for applicants' and employees' sincerely held religious beliefs and practices, unless doing so would impose an undue hardship on the company. For instance, employers may be required to make reasonable accommodations for religious practices involving body art, facial hair, and certain types of garb.
Q: Are there any guidelines that establish what constitutes a sincerely held religious belief?
A: Generally, employers should assume that an employee's request for religious accommodation is based on a sincerely held religious belief. A religious belief or practice can be unique to the individual, and just because a practice deviates from commonly followed religious tenets, does not make it an insincere belief. However, if you have objective factors that might call into question an employee's sincerity (such as inconsistent behavior, timing of the request, similar past requests made for non-religious reasons), seek legal counsel to discuss how to address your concerns. Ultimately, it's a best practice to promptly engage in a dialogue with the employee (known as the interactive process) to determine whether an appropriate accommodation is required.
Q: What can I do if an employee with direct customer contact gets a tattoo that can't be covered up?
A: If the employee has the tattoo for sincerely held religious reasons, you must provide a reasonable accommodation, unless it would impose an undue hardship. Frequently, this means granting an exception to your rule. Otherwise, keep in mind that given the increasing prevalence and acceptance of tattoos, a strict ban may not be realistic.
Q: Does our dress code need to be the same for all employees despite their role? Can I have different policies for employees that are client facing versus those that are not?
A: Generally, you can have different dress code rules for employees based on whether they interact with clients, provided you grant religious accommodations as required. Keep your rules job-related and avoid restrictions that may overly burden one gender or significantly impact a protected class of employees.
Smoking Bans:
Q: Can I disqualify a job candidate due to their smoking habits?
A: Several states have laws that expressly protect smokers from discrimination. A few other states prohibit employers from discriminating against individuals for any lawful off-duty conduct, which includes smoking tobacco. Additionally, keep in mind the potential discriminatory impact if the policy disproportionately prevents certain groups from applying for open positions. While there are job-related exceptions, it generally isn't considered a best practice to have a policy of not hiring smokers. Aim to hire the most qualified individual for the job, and if he or she is a smoker, support their efforts to quit.
Q: During interviews, can I ask whether the applicant smokes?
A: If your business is covered by a law that protects smokers, but for limited job-related exceptions, it's a best practice to avoid asking about smoking habits during interviews. If you ask whether a candidate smokes, it could be assumed that you used that information to make your hiring decision.
Pay Discussions:
Q:Can we prohibit employees from sharing their salaries with one another?
A: No. Section 7 of the National Labor Relations Act (NLRA) gives employees the right to work together to improve wages and working conditions, known as "protected concerted activity." This protection gives employees the right to discuss their wages, benefits, and working conditions with co-workers, and others, both in and out of the workplace.
Social Media:
Q: What can I do if an employee calls out sick, but we find pictures and discussions on social media that the employee went to an event that day?
A: Handle the situation consistent with how you have handled other situations where you suspected an employee was abusing your sick leave policy. Keep in mind that there may be a legitimate explanation, so investigate the facts before taking any action.
Q: Is it ever acceptable to have a discussion with employees regarding their social media posts? Can I refuse to hire someone based on their social media posts?
A: Employees and applicants are protected when engaging in a number of activities, including lawful off-duty conduct, discussing wages and working conditions, and exercising their rights under various employment laws. For example, if you refuse to hire someone because their social media posts indicated they filed a discrimination lawsuit against a former employer or took job-protected leave, this could violate anti-retaliation provisions of federal, state, and/or local laws. Even when there is no specific protection, it is a best practice to limit decisions to job-related information only.
Q: What protects the company from defamation if employees are allowed to "vent" on social media about their dissatisfaction with the company?
A: Section 7 of the NLRA allows employees to "vent" about wages and working conditions. The National Labor Relations Board (NLRB), which enforces the NLRA, has interpreted this protection broadly, and the bar for proving defamation is set high. If you believe you have a legitimate defamation claim, consider consulting legal counsel.
Workplace Safety:
Q: If a person has a permit to carry a concealed weapon, can the company still prohibit an employee from bringing the weapon into work?
A: While some states prohibit employers from banning firearms stored in employees' private vehicles parked on company property, employers may generally prohibit employees from carrying weapons into the workplace. This includes bans on firearms in company facilities and in the course of the employee's work duties, even if he or she has a concealed weapon permit. Some states require employers to first post a notice in order to prohibit guns in the workplace. Check your state law to ensure compliance.
Conclusion:
Before implementing a workplace restriction, review applicable federal, state, and local laws. Where these laws conflict, the law more generous to the employee typically applies.