Delaware Employment Law Blog

Coworkers beware.  Your male colleagues may be showing a bit more skin this summer.  According to the New York Times, it's just a matter of time before your male colleagues start showing up to work in a suit jacket, shirt and tie, and . . . shorts.  Yes, that's correct.  Shorts.  

Interestingly enough, the paper said the same thing this time last year about the line of suits that had been produced for women and that featured knee-length shorts.  I recall there being an actual debate about whether the author of the article lived on the same planet as the rest of us.  There was also a mild interest in the idea based on the heat factor.  Indeed, there was a little flurry of excitement over what seemed to be a new line in the sand when it came to business attire. 

In our office of roughly 200 people, one woman was nervy enough to give it a try.  And she looked great.  She's also a size 0 and stands 5' 10".  She looks great in a parka with mittens and snow boots.  It's virtually impossible for her to not look great. 

So, pardon me NYT, I mean no disrespect, but I have my doubts about the level of interest most men will have in the shorts-suit concept.  If for no other reason but cost.  Gen Y are the potential consumers for this latest fashion development.  And I'd be willing to bet that if they have to drop a chunk of change on a suit for a new job, it'll be for a suit they'll actually be able to wear.  It's difficult to imagine the young man who would forgo the navy blue standard in lieu of a khaki-colored pair of shorts and matching jacket.  Let's face it--he'd rather spend his money on something else, anything else, other than a suit in the first place. 

Of course, if a male colleague showed up to work wearing the shorts-suit styled like the gentleman's in the picture, above, he may be laughed out of the office, black dress shoes, white ankle socks, and all, before he had a chance to explain that the NYT had given his outfit the official thumbs up. 

When I do employment law training and seminars, I solicit feedback from participants with a questionnaire.  One of the questions is what other topics are of the most interest to audience members. Recently, I've seen a surge of requests for employment law seminars on How to Create Employee Manuals. Because I aim to please, I'll be conducting a seminar on the topic in October.  But, to hold you over until then, I thought readers might appreciate some posts on specific handbook policies. 

Given the recent movement against Jerks at Work, we get more and more requests from clients for a Respectful Workplace policy for their employee manuals.  These types of policies have significant flexibility depending on the level of the organization's commitment to eradicating jerks in the workplace. 

Here are some pointers for crafting a Respectful Workplace Policy:

Start Here.

The golden rule for these types of policies is to start with a hard look at the values, both written and unwritten, of your organization.  The worst thing to do is to craft a policy that is totally out of line with your company's everyday practices.

Don't overpromise and don't overhype the company's commitment to a respectful workplace.  Employees aren't fooled that easily and they'll resent you for thinking otherwise.  If you implement a comprehensive policy, be prepared to stand by it and hold employees and management accountable.

Be Specific. 

As easy as it is to create policies in the abstract, a policy needs specifics in order to be effective or enforceable. The word, "respectful" is a start but use words with more concrete meanings.  Better yet, give examples of what is and is not considered respectful behavior. 

As a matter of course, all such policies should include anti-retaliation language that assures employees that there will be no retaliation for reporting incidents that the employee believes are in violation of the policy.

A Respectful Workplace policy often can be incorporated into an anti-harassment policy.  But if you choose to combine the two, be sure to differentiate one from the other.  In other words, harassment is illegal and will not be tolerated.  Disrespect, on the other hand, while not illegal, is destructive to the overall health of the organization and, therefore, will not be tolerated.  Be sure to separate the two.

Carry a Stick. 

Policies of any type are useless unless they include an enforcement mechanism.  Spell out what consequences there are for violations of the policy. And don't limit yourself to disciplinary consequences.  It's a good idea to identify the social consequences that behavior like gossiping, making snide remarks, and purposefully excluding coworkers can have on the team as a whole.

Make it a point to put responsibility on everyone with mandatory reporting.  If one coworker sees another gossiping or otherwise undermining another, make it their responsibility to report the conduct--either by going to HR or management, or by "calling out" the gossiper directly. 

Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

That's right, March Madness is here. Again, it's the the time of the year eagerly anticipated by college basketball fans. The entire college basketball season packed into 63 action-packed games.

And what does all of this frenzied excitement have to do with employers? Lots.

$3.7 billion lost to March Madness basketball?

First, there's the cost. March Madness costs employers big bucks. It's estimated that the average American employee spends 13.5 minutes per day surfing the web for college basketball updates, video, and betting forums. I'm sure there are some who would say that estimate is fairly low. But, at even 13.5 minutes per day, 58.5 million college basketball fans times the average American hourly wage equals $1.7 billion, spread out over the 16 basketball tournament days.

That's right, $1.7 billion in 16 days.

Other Financial Costs
Lost productivity is obviously a monster-sized problem for employers. But that's not the only cost incurred during the tournament season. With games being broadcast both live and recorded on the internet, employees don't have to worry about the trouble of finding a television within viewing distance. Instead, they've got the whole world wide web of sports action at their fingertips. And, while productivity goes down, so does your network's speed. It doesn't take many employees watching live-streaming video to slow your system to a crawl.

Now, all of the employees who actually aren't watching the games can't do work, even if they wanted to.

Other Employer Considerations

Productivity issues require employers to make (or avoid) decisions about internet usage monitoring. But there are other issues, as well. For one, there's the issue of the office pool. Is gambling at work illegal? Does it put employers at risk legally? Well, it is unlikely that your workplace will be surrounded by a SWAT team in an ambush attack on your illicit gambling ring over an office basketball pool.

Yet, employers should decide what exactly their position actually is. If an employer allows staff to participate in a pool, the company cannot take any of the funds from the pool. The ante should be small, $5 or less. And the pool must be strictly voluntary. Persons who have a religious objection to gambling, for example, should not be made to feel "left out" of the comraderie just because they declined to toss their $5 into the pot.

And there is another, broader legal implication. Someone set up the pool. Someone is collecting money from participants for the pool. Someone is monitoring the status of the pool. And, likely, everyone is e-mailing about the pool. Also likely is that all of this hard work and dedication (towards non-work activities) is happening during working time.

This is where it really doesn't pay to be the nice guy, just this once. This is soliciting at work. Just like employees who sell their daughter's Girl Scout cookies is soliciting. Just like asking for donations to a charity is soliciting. Just like an employee who hands out catalogues and ordering forrms for a "jewelry party" (the modern-day incarnation of the Tupperware party) she is hosting soliciting.

And just like union salters who try to plant the seeds for a union campaign is soliciting.

The reason employers have non-solictitation policies is to avoid all of the above. By permitting employees to solicit at work, even just this one time, you risk liability later when the union representative wants to solicit your employees to go union.

But There is an Up Side

Okay, okay. I know that I've painted such a grim picture of such a fun time but have faith. Here's the upswing. Employers need to know about these risks and consciously decide how to handle each one. But, by "handling it," I don't necessarily mean firing everyone who participates in the pool or scans the web for the latest updates. There are more reasonable alternatives.

For example, get involved. Instead of being on the outside looking in trying to scope out the secret world of workplace spoots pools, companies can consider organizing the pools. Of course, this isn't a free ticket to ignore the rules of the game, as discussed above. But you could put a positive spin on it.

Why not have a portion of the winnings go to a local charity. Maybe one that the company has a history of supporting. Or maybe the pool winner(s) get to decide. Or even assign charitable organizations to each team and, when that team wins, the charity wins.

Another example might be sanctioned viewing. If you are inclined to restrict internet access to sports websites, announce that the restrictions are lifted and employees are free to view the games at certain designated times.

If your workplace has televisions in conference rooms or the cafeteria, make it a company-sponsored social time. Sporting events are as much "team-building" as any nature hike or rock-climbing experience. At Young Conaway, I'm proud to say that we practice what we preach. On Monday evening, before the game, our firm hosts a now annual Alumni event. All of the former attorneys who have gone on to don a black robe, opened their own practice, or went off to any other adventure, are welcomed back to talk sports and law, and eveything in between, and, while they're at it, to catch up with former colleagues. We have a tremendous turn-out for what has become a really great event.

So, the moral of the story is, make a decision, communicate the decision, and, whenever possible, include comraderie in the solution. It's a win-win all around.

Some thoughts from others in the know:

The Baltimore Sun discusses the upside to March Madness and how employers can utilize the basketball season to bring employees together. See the full article here.

The HR Capitalist has some quick-witted insight on the unavoidability of March Madness at http://www.typepad.com/t/trackback/817654/27180064.

The N.Y. Times has an informative Q & A on the office pool here, which Representing Management discusses with a legal focus here.

The Beazley Source tackles the cost of March Madness to productivity and the bottom line here. CNN's Money page does the same here.