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May 2, 2012

Uniforms and Perfume…More on the Subject of Dress Codes

This is the third in a series of blogs regarding dress code policies.  Once the discussion begins, it inevitably moves into the area of personal hygiene.  One employee may unknowingly wear a perfume or cologne that another employee is allergic to.  Or then there are the hygiene issues on the other end of the spectrum, when a little perfume (aka deodorant) may be in order.  How do you address those issues?  Read on for some helpful hints.

8.            Can uniforms be required?

Generally, yes.  However, there are state and federal restrictions as to who must pay for the uniform and the cost to maintain it.  The Department of Labor defines a uniform to be anything that associates the clothing with the employer, (e.g. includes a logo, emblem, or distinctive color).  It also includes such items as tuxedos (as might be required in a restaurant) or a particular kind of blazer or jacket.  Some states define “uniform” even more broadly and consider it to be anything that the employer requires the applicant / employee to purchase.

The federal Fair Labor Standards Act (FLSA) does not require an employer to buy or maintain an employee’s uniform.  The FLSA allows an organization to require an employee to pay for it provided the costs don’t reduce the employee’s wage below the statutory minimum or reduce overtime.

However, numerous state laws require employers to pay for uniforms and for the cost of maintaining them if they require anything other than normal laundering.  Some states permit deposits.  States generally also have very strict prohibitions regarding what can be deducted from an employee’s paycheck.

9.            Can we restrict the wearing of perfumes and colognes?

Some individuals have hypersensitivities to chemicals or allergic reactions to perfumes, colognes, and other scented products.  The problem is a sensitive one and a policy restricting the use of scented products may offend some employees.  However, employers unwilling to deal with the issue may risk ADA discrimination if they refuse to accommodate an employee with an allergy that qualifies as a disability.  Consequently, some companies have instituted fragrance-free workplace policies and enforce them the same as any dress code policy.

10.          What about hygiene issues?

Obviously, addressing employee hygiene and body odor are sensitive issues.  However, they should be handled in the same manner as dress code issues.  Body odor by itself is not a disability under the ADA, but it could be a symptom of a serious underlying problem that may be protected.  Believe it or not, there have been cases where employees have been fired for body odor who later sued, claiming they were disabled under the ADA.

11.          What should be considered in drafting and implementing a dress and grooming policy?

a)            The policy should be based on business justifications.

b)            While an exhaustive list of “do’s and don’ts” is probably not required or advisable – you can’t write standards for every situation – require specific, unambiguous standards and provide some general examples (e.g., even examples of casual attire should be provided…are t-shirts and shorts appropriate?).  Examples should include items of clothing that are required, optional, and never acceptable.  Avoid using standards that are targeted at one sex, race, or ethnic group.  Attempt to define.

c)            Inform your employees.  Employees should understand the business reasons behind the company policies and have a good understanding of the standards.  Such communication should begin at the job interview, continue at orientation, and be well explained in the handbook and through ongoing communications.  Employees should also be aware of the penalties for noncompliance.

d)            Enforce the policy consistently for all employees to minimize the chances of discrimination charges.  However, be aware, that the law may require you to make exceptions to accommodate certain individuals.

e)            Provide accommodations for religious reasons, disabilities, and other appropriate reasons.  Ensure that managers are aware of these legal requirements.

f)             Ensure that managers are consistent in implementing the policies and instituting corrective actions as necessary.  Insist that managers follow the rules themselves.

g)            Enforce the rules, but don’t dictate.  Don’t punish the group and institute stricter rules because a few individuals are dressing inappropriately.  Rather, discipline those requiring it.

h)            Indicate to whom questions regarding the policy should be addressed.  Employees should be able to ask their managers as well as an alternate party, such as HR.


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