Monthly Archives: December 2013


In McComas v. ACF Industries, LLC, the Supreme Court of Appeals reversed a circuit court’s dismissal in favor of an employer in a deliberate intent case.  The plaintiff was a welder employed by ACF which operated an industrial plant for the construction of railroad cars.  The plaintiff was directed by his foreman to go to a section of the ACF plant to begin building sides for railroad cars.  The area where the plaintiff and other employees were sent to work was dark, and turning on the electric power was necessary for lighting the area and powering the welding machines used to build the cars.  Initially, the employees attempted to turn the power on by using the individual circuit breakers.  When that attempt was unsuccessful, the plaintiff approached an adjoining 480-volt fused, switch box.  The box was enclosed and the side-handle was down in the “off” position. When plaintiff raised the handle to the “on” position, an arc blast blew him backwards and to the floor.  Despite wearing protective gear, the plaintiff suffered severe burns to 25% of his body.  The Plaintiff filed a deliberate intent suit against his employer under the 2005 version of W. Va. Code 23-4-2(d)(2)(ii).  At that time, the deliberate intent action could be satisfied only if a plaintiff could prove the following: 

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Did you know that 98% of your clientele will judge the reliability and strength of your business based upon the appearance of the first employee with whom they interact?  Probably not, because I just made that up, but what if they did? 

Company dress codes are often treated like an afterthought rather than as a policy which should be thoughtfully drafted, timely updated, thoroughly explained, and seriously enforced.  Many employers don’t think about them until faced with an employee who is inappropriately attired, and then they discover that their policy doesn’t cover the specific situation, or that it’s simply never been enforced.  Admittedly, sitting down with an employee to discuss their fashion sense or personal hygiene is an uncomfortable scenario for any manager.  However, a properly drafted and circulated dress code can ease that situation. 

As a general proposition, employers can require employees to abide by set standards for their workplace attire, and employers have many reasons for such standards.  For instance, employers may wish to establish a desired public image, to ensure workplace safety, or to promote worker productivity and morale.  No dress code is a one-size-fits-all, however, and you should not assume that one standard is sufficient throughout your organization.  For example, a business may have employees who work in manufacturing a product, employees who run the office, and employees who conduct outside sales of the product.  In each of those areas, an employer may have different employee dress expectations.  Manufacturing employees typically require special safety gear, like steel-toed shoes, gloves, or protective glasses.  They may be at risk for injury if they wear long necklaces or bracelets while at work.  Outside sales personnel are typically the face of the company and require a more professional appearance.  Office staff may be in a better position to wear casual clothing while they work, but when office or sales staff enters the manufacturing area, additional dress codes may apply to them.   

As you do with other workplace policies, try to provide specific guidance to your employees.  “Business casual” and “inappropriate attire” do not have set definitions which are understood by all.  Give examples: “Clothing appropriate for yard work or exercise is not appropriate professional attire.”  Additionally, be specific: “Skirts need to fall no shorter than two inches above the knee.”  Don’t forget to address accessories and grooming: “Employees are expected to maintain good personal hygiene” and “No one may wear necklaces on the operating floor.”  Finally, address your specific business needs: “Employees must wear an employer-provided name tag while at work.”  

The policy should further state that it is not all-inclusive and will be reviewed periodically to keep it up-to-date.  It should also identify an individual (e.g., supervisor) or group of individuals (e.g., human resources) to whom questions may be directed on the appropriateness of attire.  Don’t forget to warn that disciplinary action may result for violation of the policy.  

Once the policy is in place, you must train your employees on the policy if you intend to enforce it.  Consider having employees sign an acknowledgement that they have read and understood the dress code policy as you do with other policies.  Further, when addressing a grooming issue with an employee, do so in a non-judgmental manner.  Use the policy to describe factually the distinction between what the employee is wearing and what the policy permits.            

Of course, when drafting and enforcing dress codes, remember that certain laws may apply.  Religious requirements, cultural practices, and certain disabilities may require an employer to explore whether an accommodation – including an exception to the dress code – is necessary to avoid violating anti-discrimination laws.  You may want to consider adding a procedure for requesting an exception or accommodation in your policy.  

Gender discrimination may also be an issue – and one more difficult to spot.  While men and women may have some different grooming standards, you must make sure the policy is applied evenly and accurately.  For example, if your policy prohibits ponytails and earrings, but the policy is only enforced against males, it may be found to be discriminatory.  On the other side of the coin, requiring women to wear skirts could also be found to constitute gender discrimination. 

The risks don’t stop there.  If an employer is not careful in how it addresses a dress code violation or in how it communicates the dress code, sexual harassment claims may be brought.  Additionally, an employer may face an unfair labor practice charge if it enforces a dress code that interferes with the exercise of Section 7 rights under the NLRA.  This may occur when an employer prohibits slogans or other expressions on articles of clothing.  

Do you have any suggestions on dealing with employee attire/grooming issues?  Do you have any creative accommodations which met both the employer’s needs and the employee’s protected concern that you can share?  If so, I’d love to hear your views.


With the holidays fast approaching, employers and employees alike are beginning to look forward to company holiday parties.  However, it’s no secret that these parties can be a double-edged sword for employers.  They are a great way to boost employee morale, but poor planning can expose employers to sexual harassment complaints and social host liability lawsuits.  Whether your party is a casual lunch in the office or a cocktail party at a favorite local venue, thoughtful planning will help ensure a safe, enjoyable, and hopefully liability-free event.  Here are a few easy ways to reduce the risk for your organization: 

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Those who have followed this blog regularly know that a true treat is in store every year at this time – the Employment Essentials annual holiday poem, authored by our own Vanessa Goddard.  Once again, our readers will not be disappointed with Vanessa’s fabulous work, so don’t hesitate to show the author some love in the comments below the prose.  Happy Holidays from the entire Employment Essentials team.  Click here to read this year’s poem.


‘Twas the month before Christmas,
I’m ahead of the curve.
All our policies in place,
Though I’m on my last nerve.


The year’s been a long one,
But we’re on the last leg.
No more laws are forthcoming,
Not even a reg.


They thought they could break me.
They tried all year long.
 Every move they made, I countered.
Documenting each wrong.


I’ve covered all my bases.
I’ve thought it all out.
No more surprises for HR.
I haven’t a doubt.


Criminal records
And background checks
All are compliant
With E-E-O-C specs.


Job descriptions are updated,
Acknowledgements signed all around,
Ready to accommodate and pay properly
Our essential functions are sound.


Been searching the Marketplace,
Hip hooray Obamacare!
Another minute with that law,
And I’ll tear out my hair.


But the notices have been sent,
Employees now know where to find,
Insurance coverage options
May they not lose their minds.


Social media has been a challenge
For instance, when an employee did tweet
A company secret or three
He was fired tout-suite.


That’s why the company attorney and I
Have become really tight
She’s number 1 on my speed dial
Tho’ no calling at night.


But, I’ve held on regardless,
My sanity deprived
Even when the Thanksgiving Turkeys
showed up alive!


The holiday party’s up next
With Secret Santas and snow,
But to avoid last year’s lawsuit,
There’s no mistletoe.


The booze is gone too,
As well as those cells.
No more postings on Facebook
Of folks wearing just bells.


The Christmas bonus is all that’s left.
The turkey debacle won’t repeat,
Because ham’s not an animal,
It’s totally a meat.


Merry Christmas!



The statute of limitations for the Fair Labor Standards Act (FLSA) is two years for non-willful violations and three years for willful violations.  FedEx sought to limit the applicable statute of limitations in agreements signed by its employees, including the plaintiff in Boaz v. FedEx Customer Information Services, Inc., a case out of the federal Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee).  The employment contract limited legal actions against FedEx to “the time prescribed by law or 6 months from the date of the event forming the basis of [the] lawsuit, whichever expires first.”  

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