Vol. 30, No. 11, November 2001
IN THIS ISSUE
Insignias and Clothing: Can They
Be Controlled?
Sample Policy: PERSONAL APPEARANCE
Sample Policy: POSTINS
Temp Agencies and Their
Clients As Joint Employers
Applications for Employment
Sample Application for Employment
Pesticide Use Drops
Mail Handling and Employee Security
How to Handle Anthrax
and Other Biological Agent Threats
INS Slashes Inspections
Safety
Sheet: Pruning Safety
Insignias and Clothing: Can They Be Controlled?
A question from a FELS subscriber may be of interest other subscribers as well.
The subscriber asked whether an employer may lawfully limit what employees wear while at work. Specifically, may an employer prohibit employees from wearing certain clothing or insignias on their clothing? Also, may a company limit what an employee affixes to company-provided equipment, such as hard hats, employee name badges and vehicles?
Protected vs. Unprotected Classes: The issue can be broken down into two categories: (1) clothing or insignias that involve a lawfully-protected class or activity and (2) those that don't.
For example, wearing a union campaign button or an item required by an employee's religion symbol falls under the first category. This is because specific protections in law grant individuals the right to join or associate with a union or to adhere to religious beliefs. In these types of situations, an employer may need to accommodate the employee's desire or need to wear the item.
In contrast, wearing a sport team's insignia does is not protected. No law protects an employee from discrimination based on affiliation with a sports team.
Personal vs. Company Property: An employer may lawfully prohibit an employee from affixing to company property an insignia of any type. For example, employees may be prohibited from putting a union sticker on a company name badge or on a vehicle, as long as affixing other types of stickers to company property is similarly prohibited.
However, a blanket prohibition against wearing a union button on employee shirts may violate the employees' rights to associate with or promote a union for collective bargaining purposes. An employer would have to implement a policy prohibiting such activity if wearing a union insignia or button adversely affected its business or that where a ban is necessary to maintain employee discipline.
Protected Classes: Here is a partial list of protected classes that could affect an employer's ability to limit the wearing by employees of an insignia or an article of clothing: participation in union activity; race; color; religion (religious creed); sex; national or ethnic origin; ancestry; citizenship; physical or mental disability; martial status; sexual orientation; and political activity.
Protected Class Issues: Even where a protected class or activity is involved, an employer may in some instances lawfully control what affected employees wear. In any event, an employer must have a legitimate business reason for doing so and be consistent in applying the rule.
Typically, courts balance an employer's interest in banning the wearing of an item against an employee's interest in wearing it.
For example, the wearing of union buttons and insignia is protected activity. This general rule, however, must be balanced against an employer's right to manage its business. An employer may be able to ban the wearing of union emblems only where the employer can show "special circumstances," such as maintaining production and discipline, safety, and preventing alienation of customers.
Similarly, an employer may need to accommodate an employee's religion-based need to wear an article of clothing. However, if the wearing of the article would interfere with safety or some other legitimate employer business interest, the employer may be able to ban the wearing of the article.
Non-Protected Class Issues: While able to limit the wearing by employees of most types of clothing or insignias during work, employers should consider how such a ban might affect employee relations.
Take, for example, for a broad-based ban on wearing baseball caps that display any type of logo, including of a popular local sports team. Some employees may become disgruntled because their employer is preventing them from showing support for "their" team.
However, letting employees wear the local team's emblem could set a precedent that would open the door for employees to wear logos of commercial products or of a competing sports team.
While the employer may lawfully prohibit employees from wearing other commercial or sports insignias, an employee denied that privilege may claim the denial is because he is in a protected class different from that of employees who wear the permitted emblem .
Dress Standards: Employers may institute reasonable dress and grooming standards. Standards may not discriminate against a person based on protected-class status, such race, religion or national origin. In other words, an employer may not subject members of one protected class to an appearance rule while not applying it to members of another.
While this also holds true for sex-based appearance rules--that is, an employer may not impose a dress code on only one sex--an employer may impose a dress code for both sexes that specifies different attire for men and women based on "accepted community standards."
In California, women generally must be respectively allowed to wear pants (Govt. Code §12947.5).
Employers must provide employees with a reasonable accommodation regarding religious dress and grooming requirements. An employer need not offer an accommodation that would result in undue hardship for the employer. An employer may maintain a reasonable dress standard that relates to a bona fide and identifiable business reason.
Employers generally may make employment decisions based on an employee's appearance such as size, facial features, hairstyle, cleanliness and tattoos. Very few legal prohibitions exist in this regard, even where these items do not directly relate to the employee's ability to perform the job.
Sample Policy: PERSONAL APPEARANCE
The atmosphere of the workplace is created in part by the personal appearance of employees. Employees must therefore exercise good taste and judgment in choosing their dress and appearance. Employees may not wear or otherwise display buttons, pins, insignias, emblems, logos or other symbols because those items may offend other company employees or customers.
An employee who, in the judgment of the employee's supervisor or other company representative, is dressed inappropriately or provocatively is sent home and directed to return to work in proper attire. Such an employee is not compensated for that time away from work.
Uniforms furnished by the company are not designed to be worn off its premises as one's personal, non-employment-related attire. Accordingly, they are not to be worn or carried off company premises without the approval of an employee's department head.
This is an overview of company policy on dress and grooming standards. An employee should ask the employee's department head for specific dress standards for that department.
The company complies with all legal requirements with respect to this policy. Where legally required, the company explores reasonable accommodation of an employee's specific grooming or dress requirements that might otherwise violate this policy.
Policy statements, government notices, and other information of concern to employees are posted on bulletin boards located at convenient locations on company premises. Employees should check those bulletin boards often for new postings.
Items may be posted only on company bulletin boards and only upon the prior approval of an authorized company representative.
Temp Agencies and Their Clients As Joint Employers
A recent question from a client, regarding whether it could use a post-offer, pre-employment physical examination when it was hiring an employee who had already been working there as a temporary employee, prompted us to review the applicability of federal employment laws, and in particular the Americans with Disabilities Act ("ADA"), to that very common situation.
The following is a reminder to employers of some of the more important issues to keep in mind when dealing with employees from staffing agencies, temporary agencies, welfare to work programs, and the like.
As most employers are aware, both the state and federal governments, and their respective administrative agencies, have been trying to limit an employer's ability to shield itself from the myriad hazards that are part and parcel of having an employment relationship.
In that regard, for example, the Equal Employment Opportunity Commission ("EEOC"), the agency that enforces most federal employment laws, has issued a series of "Enforcement Guidance" advisories that detail how those laws apply to both the temporary agency and the contracting employer.
According to the EEOC, an employee assigned to a contracting employer by a temporary agency is treated as the employee of both the employer and the agency for purposes of federal employment laws, if the contracting employer exercises sufficient control over the employee to indicate an employment relationship.
Despite that rather broad definition, however, in practice, unless the temporary agency supervises the employee, provides all of his or her supplies, and retains all, or nearly all, rights to direct the employee's work, the EEOC will find that the employer will also have to comply with all federal employment laws in regard to that employee.
Beyond just finding that the temporary agency and the contracting employer both have an employment relationship with the employee, the EEOC Enforcement Guidances also provide that the temporary agency can be held liable if the contracting employer violates the employment laws toward the employee, and vice versa.
Thus, not only do employers need to be aware that they themselves are complying with the applicable laws, but they need to be certain the temporary agencies they use are also in compliance.
The one saving grace for an employer in this situation is that they can avoid liability for the temporary agency's actions as long as it did not participate in them, did not know of them and did not have any reasonable reason to know of them. Even if it did know of them, an employer may avoid liability by taking reasonable corrective action that was within its control.
Thus, to the extent an employer ever becomes aware that a temporary agency is violating the ADA, it should document the fact that it brought the issue up with the agency and instructed them to correct the matter. If the agency does not correct it, the employer should find another agency.
That brings us back to the question of the physical examination situation that our client asked us about. There, an employee assigned to the client's facility as a janitor for nearly a year had been doing good work. The client then decided to hire him as a regular employee.
The client sent all new hires for a physical examination and was going to send the janitor for his exam. The problem, however, was that the ADA prohibits an employer from sending and employee for such an examination after he or she has begun working.
The EEOC's rationale is that once the employee has already begun performing the job, the actual performance is a much better indicator of whether the employee can physically do the work than is an medical examination.
Further, any such examination would be likely to reveal information about any disabilities the employee might have, which again, would violate the ADA.
Because the EEOC, in this type of situation, considers that the employer had an employment relationship with the employee when he was first assigned there by the temporary agency, such a post-employment test would violate the ADA. Any physical examination should be done before the employee starts to perform any work.
Disclaimer
The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody, or his or her own attorney, for individual responses to questions or concerns regarding any given situation.
(Source: Patrick S. Moody, Barsamian, Saqui & Moody)
An application for employment is a useful management tool. The major benefits of applications of employment are:
1. Application forms assemble employment information in a uniform and concise format.
2. Applications forms, when filled out by job applicants, document the candidates' qualifications in the candidates own words.
3. By distributing and accepting application forms only when seeking applicants to fill open job slots, an employer can shield itself from discriminatory-hiring charges. A person who wants to apply for employment with such an employer when no jobs are open should be unsuccessful in accusing the employer of discrimination.
4. An employee who stated false information on a job application can be discharged for having done so.
5. Application forms stating a period of time the applicant will be considered for hire limit an employer's exposure to hiring liability.
6. Application forms can be used to reinforce an employer's policies on at-will employment, drug and alcohol testing, reference checking and other conditions of employment.
Seasonal vs. Year-round Employees: While job applications are useful, in agriculture they are often limited to year-round jobs. For seasonal employment, an application for employment may be too cumbersome compared to the value derived from its use.
Legal Considerations: Some legal requirements must be observed when using an application for employment. First, an employee or applicant who signs any instrument relating to obtaining or holding employment must be given a copy of the document upon request.
Second, an employer must file with the Division of Labor Standards Enforcement a copy of the form of any application for employment that an employee or applicant is required to sign.
Third, an employer may not charge any person for the "privilege" of obtaining or submitting to the employer an application for employment.
Finally, the application may not ask questions of an applicant that are unlawfully discriminatory. When interviewing job applicants, an employer may not ask (orally or on an employment application) questions about the applicant's health or medical history. However, an employer may ask about an applicant's ability to perform specific tasks.
An employer may not ask whether an applicant has ever filed a workers' compensation claim. Also prohibited are questions relating to age, sex, national origin, race or color, religion (religious creed), ancestry, citizenship, physical or mental disability, martial status, sexual orientation and political activity.
Questions that may seem benign can be interpreted as discriminatory. Take, for example: "What year did you graduate from high school?" An answer to that question can indicate age.
Care must be taken to construct a useful and legal application form.
Some employers mistakenly use Immigration and Naturalization Service Form I-9 as an application form. This practice is strongly discouraged and could lead to a charge of discrimination because people filling out the form must indicate their U.S, citizenship or alien status on the form.
Applicant Flow Data: Something that indirectly relates to an application form is California Fair Employment and Housing Commission regulation § 7287.0(b), "Applicant Identification Records/Applicant Flow Data" requirement.
The regulation requires every covered employer (those regularly employing 5 or more employees) to maintain data regarding the race, sex and national origin of each applicant by the position sought. An identification form used to gather this data must be separate or detachable from an employment application form.
Employment decisions may not be based on whether an applicant provided this voluntary information, nor may the applicant identification record be used for discriminatory purposes. "Applicant" means any individual who either files a formal application or, where an employer does not provide application forms, otherwise indicates to the employer a specific desire to be considered for employment. One who asks informally about work or who files an unsolicited resume upon which no employment action is taken is not an applicant.
An employer must either retain the original documents - that is, applicant flow data - used to identify applicants, or keep statistical summaries of the collected data. The information must be preserved for at least two years from the date of making the record or the date of the personnel action, whichever occurs later.
Pre-Employment Inquiries: DFEH has developed a pamphlet that lists examples of permissible and non-permissible employment questions. The pamphlet, "Pre-Employment Inquiry Guidelines" DFEH-161, may be ordered from the DFEH web site http://www.dfeh.ca.gov/ postersEmp.htm. Or, call 800-884-1684.
How to use an application for employment: Employers should treat their application for employment similarly to their employee handbook and other documents relating to employment. In other words, don't distribute them widely to the general public.
The most common practice is to give an application for employment to anyone requesting work. It's easier to give them a piece of paper than trying to explain why there is no employment at the moment. However, every application in circulation is one more possible liability. Also, employers can limit discrimination claims if there is no record of an application on file.
It is important to have a central hiring procedure. Letting foremen and supervisors make the final hiring procedure opens the door to favoritism, nepotism and illegal hiring practices. Before an applicant is hired, one central company person should verify that the appropriate steps have been taken to hire the applicant. There is nothing more embarrassing than to hire someone to find out the person was just terminated by another department in the company.
For year-round jobs it's good practice to call references and administer job-related exams. For higher level employees, it's also good practice to have new employees sign an employment contract. The contract should contain the terms and conditions of employment such as the company's at-will employment policy, starting salary, employment status (exempt vs. non-exempt) and duties.
Where to Get Employment Applications: FELS has developed three forms for the purpose of pre-employment inquiries. On page six of this issue is a sample application for employment.
Subscribers desiring to preview the other forms available for purchase from FELS may go to the FELS web site at www.fels.org,"Subscriber Resources", "Forms/Employment".
The California Department of Pesticide Regulation (DPR) reported statewide pesticide use dropped for the second consecutive year in 2000, to the lowest point since 1992.
DPR's preliminary data showed reported pesticide applications totaled about 188 million pounds, compared to 202 million pounds in 1999. Reported pesticide use in California has dropped by almost 27 million pounds since 1998.
A county breakdown of pesticide use is available [PDF file] at http://www.cdpr.ca. gov/docs/pur/pur00rep/00_pur.htm. The text of the Agricultural Chemical Usage report of the National Agricultural Statistics Service is available at http://usda.mannlib. cornell.edu/reports/nassr/other/pcu_bb/
DPR data showed an overall decline in pounds of chemicals classified as possible carcinogens, reproductive toxins, and toxic air contaminants. Use of two fumigants, methyl bromide and metam-sodium, dropped by a total of more than 8 million pounds from 1999 to 2000.
Use of reduced-risk chemicals in 2000 increased by 50 percent, as measured both by pounds applied and acres treated. "DPR has made speedy registration of reduced-risk chemicals a top priority, and these statistics show that the market is ready to accept new products that better protect people and the environment," said DPR Director Paul E. Helliker.
In 1990, California became the first state to require full use reporting, and DPR has compiled the reports in the most extensive database of its kind in the nation. Reported uses include production agriculture and post-harvest fumigation of crops, structural pest control, landscape maintenance, and other uses. Exempt from reporting are home and garden applications of pesticides, and most industrial and institutional uses.
Summaries of 2000 preliminary pesticide data are available free online at www.cdpr.ca.gov. Final data summaries will be posted when analyses are completed. Data summaries from 1990 to 1999 are also available. Each summary includes two versions of the data (one indexed by chemical, the other by crop), with number of applications, acreage or units treated, and pounds of pesticide used. A county-by-county summary of pesticide use is available online.
The 400-page summaries also may be ordered in hard copy ($10 each) or on diskette ($2.50). To order, send payment to: Cashier, California Department of Pesticide Regulation, P.O. Box 4015, Sacramento, CA 95812-4015. A complete data set of the 2.5 million-plus individual 2000 pesticide application records is also available on CD-ROM for $12. For information about the CD-ROM, call the DPR Pest Management and Licensing Branch at (916) 324-4100.
Mail Handling and Employee Security
Employers are concerned with the security of their employees in light of recent deaths from anthrax exposures. Here are some resources for employers:
Bureau of National Affairs has a web site devoted to emergency procedures for employers. It is located at http://www.bna. com/employersrespond/.
A Federal Bureau of Investigation Poster on Suspicious Mail is available. http://www.fbi.gov/pressrel/pressrel01/poster101201b.pdf
A California Highway Patrol video on Biological Threat Safety can be viewed and ordered at: http://www.dot.ca.gov/ safety/.
Below is an official health advisory from the Center for Disease Control on handling anthrax and other biological agent threats.
HOW TO HANDLE ANTHRAX AND OTHER BIOLOGICAL AGENT THREATS
CDC Health Advisory
Many facilities in communities around the country have received anthrax threat letters. Most were empty envelopes; some have contained powdery substances. The purpose of these guidelines is to recommend procedures for handling such incidents.
DO NOT PANIC
1. Anthrax organisms can cause infection in the skin, gastrointestinal system, or the lungs. To do, so the organism must be rubbed into abraded skin, swallowed, or inhaled as a fine, aerosolized mist. Disease can be prevented after exposure to the anthrax spores by early treatment with the appropriate antibiotics. Anthrax is not spread from one person to another person.
2. For anthrax to be effective as a covert agent, it must be aerosolized into very small particles. This is difficult to do, and requires a great deal of technical skill and special equipment. If these small particles are inhaled, life-threatening lung infection can occur, but prompt recognition and treatment are effective.
Suspicious Unopened letter or PACKAGE MARKED WITH THREATENING MESSAGE SUCH AS "ANTHRAX":
1. Do not shake or empty the contents of any suspicious envelope or package.
2. PLACE the envelope or package in a plastic bag or some other type of container to prevent leakage of contents.
3. If you do not have any container, then COVER the envelope or package with anything (e.g., clothing, paper, trash can, etc.) and do not remove this cover.
4. Then LEAVE the room and CLOSE the door, or section off the area to prevent others from entering (i.e., keep others away).
5. WASH your hands with soap and water to prevent spreading any powder to your face.
6. What to do next... If you are at HOME, then report the incident to local police. * If you are at WORK, then report the incident to local police, and notify your building security official or an available supervisor.
7. LIST all people who were in the room or area when this suspicious letter or package was recognized. Give this list to both the local public health authorities and law enforcement officials for follow-up investigations and advice.
Envelope with powder and powder spills out onto surface:
1. DO NOT try to CLEAN UP the powder. COVER the spilled contents immediately with anything (e.g., clothing, paper, trash can, etc.) and do not remove this cover!
2. Then LEAVE the room and CLOSE the door, or section off the area to prevent others from entering (i.e., keep others away).
3. WASH your hands with soap and water to prevent spreading any powder to your face.
4. What to do next...
If you are at HOME, then report the incident to local police.
* If you are at WORK, then report the incident to local police, and notify your building security official or an available supervisor.
5. REMOVE heavily contaminated clothing as soon as possible and place in a plastic bag or some other container that can be sealed. This clothing bag should be given to the emergency responders for proper handling.
6. SHOWER with soap and water as soon as possible. Do Not Use Bleach Or Other Disinfectant On Your Skin.
7. If possible, list all people who were in the room or area, especially those who had actual contact with the powder. Give this list to both the local public health authorities so that proper instructions can be given for medical follow-up, and to law enforcement officials for further investigation.
QUESTION OF ROOM CONTAMINATION BY AEROSOLIZATION:
For example: small device triggered, warning that air-handling system is contaminated, or warning that a biological agent released in a public space.
1. Turn off local fans or ventilation units in the area.
2. LEAVE area immediately.
3. CLOSE the door, or section off the area to prevent others from entering (i.e., keep others away).
4. What to do next... If you are at HOME, then dial "911" to report the incident to local police and the local FBI field office. If you are at WORK, then dial "911" to report the incident to local police and the local FBI field office, and notify your building security official or an available supervisor.
5. SHUT down air handling system in the building, if possible.
6. If possible, list all people who were in the room or area. Give this list to both the local public health authorities so that proper instructions can be given for medical follow-up, and to law enforcement officials for further investigation.
HOW TO IDENTIFY SUSPICIOUS PACKAGES AND LETTERS
Some characteristics of suspicious packages and letters include the following
- - Excessive postage
- - Handwritten or poorly typed addresses
- - Incorrect titles
- - Title, but no name
- - Misspellings of common words
- - Oily stains, discolorations or odor
- - No return address
- - Excessive weight
- - Lopsided or uneven envelope
- - Protruding wires or aluminum foil
- - Excessive security material such as masking tape, string, etc.
- - Visual distractions
- - Ticking sound
- - Marked with restrictive endorsements, such as "Personal" or "Confidential"
- - Shows a city or state in the postmark that does not match the return address
An Aug. 6 story in the Los Angeles Times suggests that the U.S. Immigration and Naturalization Service (INS) has all but given up on workplace enforcement. Employer sanctions, touted 15 years ago as the nation's key tool for stemming illegal immigration, have failed in practice.
Without fanfare, the INS has slashed its worksite enforcement efforts in recent years, resulting in a dramatic drop--as much as 97% over two years--in arrests of workers and fines and warnings issued to employers, government records show.
"They have not worked," conceded Doris Meissner, who served as INS commissioner for seven years until last November. "There really is not any reliable way for employers to comply with the law," which she described as "very, very weak."
Employer sanctions were undermined by a booming market in phony documents, the needs of employers to fill their job openings, widespread resistance to the creation of a national identification card--and by politics.
Whatever emerges from the process, some experts maintain it can succeed only with effective implementation at the workplace.
Yet, "neither Republicans nor Democrats nor a broad range of interest groups is prepared to support an employer sanctions program that actually would work," Meissner said. As a result, she added, enforcement of immigration laws in the workplace "will have to be addressed from some other angle."
As crackdowns in the workplace sparked political backlashes in the 1990s, Congress declined to build on the approach. In 1999, the INS shifted its enforcement focus away from sanctions.
"Nobody wanted to make employers cops. Nobody wanted to make employers forensic document experts," said Joseph R. Greene, assistant INS commissioner for investigations. "That was in some ways the breakdown of the system."
When sanctions were first approved, illegal immigrants often were blamed for taking jobs from American citizens who needed them. But as the 1990s progressed and the U.S. unemployment rate fell to depths not seen in 30 years, that theory came under attack. An array of industries, from agriculture to meatpacking to hotels, restaurants and construction, were increasingly reliant on immigrant labor to fill job openings for which no one else was applying.
The INS never got the resources to carry out the difficult mission. The number of agents charged with monitoring all U.S. workplaces--1,899 as of June--has been declining in recent years.
Rising concerns that foreign-born job applicants were facing discrimination led Congress in 1990 to ban employers from demanding them to produce INS documents. While employers risked INS sanctions if they hired illegal immigrants, they risked fines from the Justice Department's Office of Special Counsel if they violated the legal rights of their employees.
Against this confusing backdrop, a black market in identification papers flourished. Increasingly, employers located outside such immigrant strongholds as California, New York and Texas found themselves with large cadres of illegal employees.
Complaints have met an increasingly sympathetic reception from politicians. After INS agents swarmed into the onion fields of Vidalia, Ga., in 1998, arresting 20 illegal workers and sending more scurrying for cover, several members of Congress complained to U.S. Atty. Gen. Janet Reno, as well as the U.S. secretaries of Agriculture and Labor. Efforts in 1999 to target illegal workers in Nebraska's meatpacking industry, known as Operation Vanguard, prompted a similar backlash.
In 1999, the INS was ready to formalize a new set of enforcement priorities, de-emphasizing employer sanctions while making violent immigrants, the smuggling of humans and document fraud top concerns inside the United States.
Since the new policy has taken effect, INS statistics show a striking drop-off in the enforcement of workplace sanctions affecting employers and employees. In 1998, the number of employer fines was 7,115; by last year that figure had fallen to 178. In 1998, the number of workers arrested due to workplace enforcement actions was 13,875. By last year, the figure had dropped to 953.
Last year, even the AFL-CIO--traditionally worried about the effect of cheap labor on its union members--abandoned its support of employer sanctions and came out for an amnesty program. Labor leaders concluded that sanctions were not deterring illegal immigrants from seeking U.S. jobs. Meanwhile, the union argued that some employers were exploiting their most vulnerable employees, threatening to report them to INS.
Despite widespread displeasure with sanctions, there was never much support for another measure that might have led to greater immigration control: a national identification card. Technology has made the possibility of a counterfeit-resistant card increasingly plausible. But such a document, which could be issued only to citizens or permanent residents, raises deep fears of the government invading individuals' privacy.