Sunday, May 24, 2015

The U.S. Department of Labor Takes New Interest in Employees' Uses of Mobile Devices

As most employers know, the  U.S. Department of Labor (DOL) is in the process of redefining the exemptions for executive, administrative, professional, outside sales and computer employees, and it is widely-expected that the new regulations will greatly decrease the number of employees eligible for these exemptions.  The DOL expects to publish a notice of proposed rulemaking on these issues in June 2015.

But that's not the only subject on the DOL's radar.  In its Spring 2015 regulatory agenda, published on May 21, 2015, the DOL has advised that by the end of August 2015, it plans to issue a Request for Information "on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours."   A copy of the DOL's Spring 2015 agenda is available at:  http://www.reginfo.gov.

The most likely purpose of the DOL's attention is to issue new regulations that classify such usage as compensable time.  

Employers that provide portable electronic devices to non-exempt employees should stay tuned for more information on the DOL's actions in this area.

Wednesday, May 20, 2015

Employer Dress Code Policies---Beware of Button Bans

Most hospitality employers maintain and enforce a dress code to strengthen their brand images and promote uniformity in the workplace.  But can an employer prohibit an employee from wearing any pins and buttons on a uniform?

It is well-settled that an employer violates the National Labor Relations Act when it prohibits employees from wearing union insignia at the workplace, absent special circumstances.  The National Labor Relations Board (Board) has found special circumstances justifying the proscription of union insignia and apparel when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

What does it take to demonstrate "special circumstances" to ban buttons?

In a recent decision, the Board took issue with an employer's "Dress Code and Personal Hygiene Policy" that prohibited those who had contact with the public from wearing pins, insignias or other message clothing.  Boch Imports, Inc., Case 01-CA-08355 (April 30, 2015).  

The employer, a car dealership, argued that the button ban was necessary to avoid injury to employees and damage to vehicles.  The Board disagreed, and found that as written, the rule applied to employees who had no contact with the public, regardless of whether they had contact with the employer's vehicles. 

Noting that the rule applied to employees who did not typically have contact with vehicles, such as finance and administrative personnel, that the record did not include any evidence supporting actual safety concerns related to pin-wearing, public-facing employees, and that the policy made no mention of safety concerns, the Board found the ban unlawful.  

The takeaways from this decision are to tread cautiously when considering enacting an across-the-board ban on buttons, and consider whether "special circumstances" justify such a ban.