Shari's Solutions: The Body Art Politic

Advice on all things HR from Shari Lau, SHRM-SCP, SHRM’s knowledge manager. E-mail your questions to Shari at AskShari@shrm.org.

By Shari Lau May 1, 2016
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5Solutions.jpg 0516cover.jpgCan we ban visible tattoos and piercings in the workplace?

Yes. Employers may prohibit visible body art as long as the policy applies to all employees in similar jobs and contains exceptions that would allow reasonable accommodations for religious beliefs.

That said, anyone can file a lawsuit for just about any reason. Since you might have to pay to defend your policy in court one day, consider designing one that isn’t too rigid.

Gone are the days when only sailors and bikers sported tattoos. Nowadays, 29 percent of the U.S. population has at least one work of inked art, according to The Harris Poll in October 2015. Almost half of Millennials have at least one tattoo, and more women than men are getting them.

Traditionally, tattoos have been seen as unprofessional “job stoppers”—whether they are elaborate painted “sleeves” on the arm or a tiny red heart on a wrist. But when we attempt to create a dress code that limits individuality, we should do so with considered thought.

Tattoos and piercings can hold great personal meaning to an individual. They can be a way to express one’s religious faith, cover a scar, remember a deceased loved one, symbolize a cultural rite of passage or demonstrate one’s personality. Ask someone about their tattoos and great emotions may surface, personal motivations might be learned or creative inspiration uncovered. As companies seek to attract the best and brightest from around the globe, visible tattoos and piercings may soon become the norm in a strong, diversified workplace. So if your company arbitrarily denies employees the opportunity to express themselves through body art, you might send a message that inadvertantly curtails innovation and growth—especially if a talented employee with a tattoo is forced to leave or great job candidates with piercings are skipped over. Your employer’s brand could also suffer, as Millennials and others look for employers that seem more progressive and inclusive.

Of course, some limits are acceptable and wise. Banning visible profane or demeaning slogans or images makes sense, as does prohibiting tattoos for customer-facing employees in conservative industries such as banking. Those working with children might be asked to cover tattoos of a frightening nature, and perhaps a nurse shouldn’t have a tattoo of a blood-dripping scythe on the back of his hand.

Draft a policy that best meets your business’s needs. But don’t base it on outdated appearance standards. When you write a policy like this, try to imagine what would happen if both your worst and best employees violated it. Is it worth saying goodbye to your best programmer, salesperson or up-and-coming executive because of a new wrist tattoo that peeks out from under her cuff? If not, it may be time to reconsider strict body art policies and embrace a more encompassing definition of professionalism.

Should we dock exempt employees’ paid time off when they work partial days?

I’ve been asked this question countless times over the years—usually followed by “Is it legal?” The answer to the latter is yes. It is allowable in all 50 states, even California (which years ago didn’t think it was such a great idea). But before you adopt such a policy, think about how it might affect employee morale.

While the federal Fair Labor Standards Act (FLSA) doesn’t actually govern paid time off (PTO) banks, it is the relevant law to consider here. Under the FLSA, most exempt positions must be paid a weekly salary that can be docked only in specific situations, assuming the employees worked any portion of the workweek. Requiring someone to use PTO leave doesn’t result in any loss of salary, which is what the federal law prohibits.

So employers can subtract hours from employees’ accrued paid leave. But is that a good idea? The law exempts these workers from overtime pay in part because of the required fixed salary owed to them whether they work two hours a week or 100. The intent of the law is to pay for the job, not the specific hours worked, which benefits employers when employees work more than 40 hours a week.

If you dock PTO by the hour, what happens when an exempt employee works just a few hours one day but doesn’t have enough PTO available from which to deduct the time off? You must still pay him for the full day, but you’ll have to track the negative balance of PTO. In addition, subtracting PTO by the hour will almost certainly make the worker feel his “unpaid” overtime during other weeks is not appreciated.

However, if the exempt employee who works less than half a day is required to deduct only a half day of paid leave, he would probably feel more valued for those extra-long days he puts in other weeks. Such a policy also would simplify record-keeping and honor the meaning behind the law that classifies employees as exempt in the first place.

When should employees be put on a performance improvement plan?

Performance improvement plans (PIPs) have the unfortunate reputation of being the grim reaper of employment. Instead of providing an actual plan to improve performance, they often act as more of an implied indication that it is time for the employee to update his resume. Because PIPs provide a good paper trail if the worker is actually discharged, they allow your attorney to sleep well at night.

Call me crazy, but I think performance improvement plans should be used when you actually want the employee to improve his performance and stay employed—and not because his manager has been pushed to the limit and just wants the employee gone.

Can a fed-up manager be an effective coach? Doubtful. And if the employee knows that the survival rates of those on PIPs in the past was nil, he is likely to pay less attention to his work duties, which will make the next 30 to 90 days even more stressful for all involved.

But PIPs don’t have to be a death knell. Some good employees whose performance has slipped during a personal crisis might just need the nudge that this document provides to get back on track. Likewise, when a PIP is used correctly, a worker who needs a little more training or help in understanding what is expected of her could keep her job, and the employer could save the cost of recruiting a replacement.

Therefore, when you truly want a failing employee to succeed, and the manager is on board and possesses the skills to help the worker excel, a PIP can be a great tool to help you demonstrate your organization’s willingness to invest in its people.

You can still rely on your disciplinary process and clearly written reprimands to remove a worker who exhibits willful low performance or unacceptable behaviors. But if your progressive disciplinary policy mandates a PIP before termination, you may want to tweak that language to ensure that you aren’t signaling a long goodbye any more than you would promise continued employment.

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