1. © 2013 Rybicki & Associates | P.C. R YBICKI & A SSOCIATES | P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Rybicki & Associates | P.C. 465 First Street West Sonoma, CA 95476 (707) 222-6361 Employee Dress, Conduct and Expression

2. © 2013 Rybicki & Associates | P.C.

3. “Expression” Dress Language Conduct Association Expressive Items Grooming Body Art Music, Video, Social Media Use

4. © 2013 Rybicki & Associates | P.C. Conduct & Activities Working Time Before & After Work Breaks & Meal Periods Off-Duty Conduct Off-Duty Activity Groups & Clubs Political Activity Social Media

5. © 2013 Rybicki & Associates | P.C. Potential Problems Actual Discrimination Intentional Stereotyping “Associational” “Disparate Impact” Accommodation Religious Disability/Medical (Marijuana?) Privacy

6. © 2013 Rybicki & Associates | P.C. Potential Problems Collective and “Concerted” Activity Off-Duty Conduct Protection Social Media Protection Interference with Employees’ Contracts Business Opportunities Others

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8. Problem Created by Dress Company Image Other Employees’ Perception of Employee Effectiveness of Employee Ability to Regulate Other Employees’ Dress Offensive to Other Employees

9. © 2013 Rybicki & Associates | P.C. Common Problems Inappropriate Attire (Revealing, Racy, Sexy) Inappropriate Messaging (T-Shirts, Buttons, etc.) Uncomfortable or Out-of-Place (clothing, body art) Confrontational (Personal Messages, Themes, etc.)

10. © 2013 Rybicki & Associates | P.C. Regulating Dress You may regulate dress, jewelry, visible body art You are not usually required to justify the image you want to portray But be careful in certain situations

11. © 2013 Rybicki & Associates | P.C. Exercise Caution Clothing, jewelry, items commonly associates with particular cultures or ethnicity Particular types of clothing for men and women (cannot prohibit pants) Be aware of potential accommodation requirements

12. © 2013 Rybicki & Associates | P.C. Example Employee insists on wearing a religious item on her necklace. What effect could this have on other people? What do you want to do? What can you do?

13. © 2013 Rybicki & Associates | P.C. Example Employee wears tight, revealing clothing to work. Insists it is part of her culture and points to posters, media, TV shows, etc. What effect could this have on other people? What could she say if you restrict her dress? What can you do?

14. © 2013 Rybicki & Associates | P.C. Potential Accommodation Disability (facial hair, fabric and cloth, tight clothing) Gender/Preference (transgender status) Religious Requirements or Expression But note: religious accommodation rights may be limited by the federal constitution (“more than de minimus” hardship?)

15. © 2013 Rybicki & Associates | P.C. Other Dress Issues

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17. Problems Created by Conduct Disruptive Speech Disruptive Conduct Potential Harassment “Imputed” to Employer Company Image Customer Comfort Conflicts of Interest Conflict with Company Culture

18. © 2013 Rybicki & Associates | P.C. Common Problems Gossip, Unnecessary Talk, Privacy Inappropriate Language and Terms Insubordination, Work Complaints Off-duty: unpopular organizations or causes Off-duty: criticism of work, management, or co-workers Off-duty: irresponsible or socially unacceptable behavior

19. © 2013 Rybicki & Associates | P.C. Examples Two employees share an office, loudly criticize another worker whose office is across the hall What effects could this have on different workers? What risks does their conduct create? Any limitations on what you can do?

20. © 2013 Rybicki & Associates | P.C. Examples Two employees share an office, listen to music that frequently contains racial slurs and potentially derogatory comments about women. How could this affect other employees, what risks does it create? What might the two employees say about the music or your decision to prohibit it? How would you handle it?

21. © 2013 Rybicki & Associates | P.C. Examples An employee works in one of many cubicles in a room, She posts several religious pictures and often talks about her religion with other employees. How could this affect other employees, what risks does it create? What might she say about her rights? How would you handle it?

22. © 2013 Rybicki & Associates | P.C. Regulating Conduct You may regulate on-duty conduct with some restrictions Similar restrictions to speech You are limited in regulation of off-duty, off-premises conduct

23. © 2013 Rybicki & Associates | P.C. Specific Issues “Concerted Activity”: Employees may be protected when they complain about or discuss working conditions. Wages and Working Conditions: Employers cannot prohibit disclosure of an employee’s wages and working conditions (Labor Code §§ 232, 232.5).

24. © 2013 Rybicki & Associates | P.C. Specific Issues Off-Duty Conduct: Employees may not be disciplined or discharged due to off-duty, off-premises conduct (Labor Code section 96(k)). The conduct must be lawful The conduct must be away from the workplace

25. © 2013 Rybicki & Associates | P.C. Specific Issues Political Activity: May not prohibit or influence political activity or affiliations (Labor Code § 1101, 1102). Other Employee Complaints: Various laws – workplace safety complaints, legal violations, caregiver requirements.

26. © 2013 Rybicki & Associates | P.C. Off-Duty Conduct Off-Duty Conduct is a Difficult Issue Conflicts of Interest Trade Secrets Public Criticism by Employee It can be difficult to discipline based on off-duty conduct

27. © 2013 Rybicki & Associates | P.C. Examples Employee is cited by the police for possessing marijuana, citation is published in the local paper. Employee is cited by the police for “soliciting” (offering to pay for something you aren’t allowed to pay for), citation is published in the paper.

28. © 2013 Rybicki & Associates | P.C. Examples Employee is arrested for possessing “obscene” materials. He claims they are political propaganda. There is a front-page story in the local paper.

29. © 2013 Rybicki & Associates | P.C. Examples Employee takes a night job with a competitor. What if the employee is working as something unrelated to his position (helps a friend’s winery in the field at crush when not working as a tasting room host at your winery)?

30. © 2013 Rybicki & Associates | P.C. Examples Employee posts negative comments about company staff on a Facebook page. Employee starts the wildly popular “My-employer-is- unfair.com” website “informing” the public about your company’s unfair pay, policies, and expectations.

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32. R YBICKI & A SSOCIATES | P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Rybicki & Associates | P.C. 465 First Street West Sonoma, CA 95476 (707) 222-6361 www.rybickiassociates.com