As a kid, everyone seems to have that one friend whose parents are infinitely more permissive than their own. They get to stay up late, eat junk food, and come and go at their leisure. For the envious rest of us, childhood was just a matter of biding time until we were all grown up and could do what we pleased without anyone telling us what to do. All those years of waiting for the freedom we’d only dreamed about seemed poised to bathe us in unrestricted joy…
Then came our jobs. Actual responsibilities and obligations became our new burdens, at least as long as we wanted the income to support our fabulous visions of freedom. Bosses and clients and our direct reports and customers and partners: everyone’s demands whittle away at the dream of complete autonomy. Before you realize it, you’d love it if someone would make you go to bed by 10 on a weeknight, but then who’d get to all those backlogged reports?
Still, though, you’re an adult and have the opportunity to bring your individuality to the workplace while keeping your outside life completely private, right? Well, not entirely. Maybe you discovered this a couple of weeks ago when you were told you couldn’t wear your Halloween costume to the office. Maybe banning Dracula seems draconian, but there’s no rule that says private employers need to accommodate your desire to dress up, no matter how brilliant your idea. Virtually all companies have some sort of employee dress codes and appearance standards, whether it’s as minimal as no open-toed shoes or as strict as the hair guidelines of the New York Yankees.
Even public employees, who can often default to First Amendment protections for expressing themselves without censure, aren’t guaranteed the right to dress up, since they, too, can be held to appearance standards that don’t encroach on legitimate religious beliefs. Of course, if the public employer allows some costumes but then forbids others based on the costumes’ “message,” those revered Constitutional rights come into play, and the employer is suddenly left with a mess, so it’s usually just easier to establish a blanket ban than open up the possibility of litigation.
Those First Amendment rights that could, theoretically, protect an otherwise miserable DMV employee’s small spark of joy in dressing like his or her favorite Game of Thrones character don’t exist in the private sector. A frequently misunderstood fundamental right, even by many of the politicians who spend their time appearing on cable news programs instead of studying the Bill of Rights, is that of protected free speech. If you work for a private employer—particularly in an at-will capacity—you’ve no reason to expect you’re free to say whatever you like and not expect to have it come back on you.
Think about all the high-profile incidents where a celebrity loses a lucrative deal because he or she said something so asinine or contemptuous that an employer had no choice but to cut ties with that person lest the backlash affect its profits. The fired celebrity may have a civil case against the former employer if what it did violated the terms of their contract, but the First Amendment isn’t applicable. Freedom of speech is a right to not have one’s opinion curtailed by the government, although even that doesn’t mean public employees get unrestricted speech. Often, overt political messages are not allowed, particularly by those in sensitive security positions or the armed forces.
Even when private rights involving off-the-clock activity allow something, it’s not automatic that an employer needs to tolerate it. With a handful of states and Washington, DC legalizing recreational marijuana use, it may seem a given that anyone in those jurisdictions should be allowed to engage in using it in their leisure time without it being any business of their employer. Not so. Just like most employers can choose to test their employees for alcohol, tobacco, and illicit drugs, recreational marijuana, while it may be legal to use, could be a substance a company doesn’t want its workers using or abusing. As a practical matter, it might not matter much if the average office worker smokes a joint or two on a weekend when compared to, say, a bus driver who might be eating pot brownies right before his shift, but it’s largely still the prerogative of the employer whether it finds the behavior acceptable. On the other hand, if medicinal marijuana is legal in the jurisdiction, an employer may risk running afoul of accommodation protections.
Speaking of health care, there are some lines about wellness an employer can cross, even though many consider the subject of medical privacy to be sacrosanct. The Americans with Disabilities Act (ADA) limits the circumstances under which an employer can require a physical exam or require disclosure of certain medical information, but it can get a bit more intimate when it comes to things like concerns over communicable diseases. If, for example, an employer has some reasonable suspicions that a sick employee’s fever may be something more than just a fever, it can ask if he or she is experiencing Ebola-like symptoms or if he or she has been to areas where the outbreak is occurring. If objective evidence supports the suspicion, the employer can require further testing in compliance with state health laws.
Without a reasonable foundation for encroaching on an employee’s medical privacy, however, employers can get into trouble. Such is the case with Honeywell International, which is being sued by the US Equal Employment Opportunity Commission for imposing penalties on employees who refuse to participate in its employee wellness program. The program screens employees and their spouses for blood pressure, cholesterol, blood-sugar levels, waist circumference, and nicotine. Those who don’t comply with the testing can face fines and penalties from the company in excess of $4,000. While this case is in the early stages, it will provide an interesting test balancing employees’ ADA protections against an employer’s right to protect its profit margin by proactively reining in health care costs.
Of course, trying to navigate the myriad nuances of what is and isn’t allowed by employees and their employees is impossible to summarize accurately in a blog post, so it’s best to contact our team with specific questions. We represent both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more. With offices in Atlanta and Nashville, Parks, Chesin & Walbert offers a client-centered philosophy and strives to accomplish our clients’ goals as if they are our own. If you live in Georgia or Tennessee and need an experienced Atlanta employment law attorney, contact us today at 404-873-8048.