Have you considered whether and how to address employee conduct that other employees or even patients might consider troubling or disruptive but that doesn’t necessarily violate a federal, state or local law? Maybe you already do in the practice’s employee handbook. Hygiene, smoking or vaping, the use of personal electronic devices — even choice of microwaveable food — can all fall in this category.
Just last month, BBC reported that two students at the University of Colorado, Boulder, won a $200,000 settlement against the university in their civil rights lawsuit claiming they faced discriminatory treatment and a “pattern of escalating retaliation.” It all started after one of the pair heated a dish in the microwave, creating an odor a staff member objected to.
Could such a lawsuit be filed and won in California? “Absolutely,” says Michelle Coker, CDA’s employment practices analyst. “California has strong anti-retaliation and civil rights protections.”
“I’ve seen situations where something that started small — a disagreement, a comment, even a misunderstanding — escalated because the employer didn’t address a situation or mishandled the follow-up,” Coker says. “That’s why training, documentation and consistent communication matter. When employers take complaints seriously, respond thoughtfully and follow the law, they protect both their employees and their practice.”
Employees who look for loopholes in employee policies may find them if written policies that define conduct expectations do not exist — or do exist but are not applied equally and consistently to all employees.
Here are just four areas of employee conduct and attire that practice owners might consider addressing through a workplace policy.
Excessive use of cell phones and other personal devices
Smartphones, tablets and wearable technologies have become an integral part of employees’ everyday lives. CDA’s employment practices analyst Michelle Coker says that while many members have voiced concerns over employees’ excessive use of personal devices, very few have an office policy to address it. And practice owners who do have a policy have reported difficulty enforcing it because employees insist they need to have their cellphones at their side during work hours in case of “emergencies.”
California law prohibits employers from preventing any employee from using their cellphone or other communication device to seek emergency assistance, determine the safety of a situation or communicate with another person to confirm their safety. It does not prevent employers from setting general restrictions on cell phone use.
When used excessively, these devices can distract employees from work, disturb patients and team members, pose security or HIPAA risks and even create potential infection-control problems.
Coker offers practice owners guidance for establishing a personal device policy, noting that the policy could, for example, direct all employees to:
- Keep their personal devices powered off or in silent mode
- Store their personal device with their personal belongings and limit use to rest and meal breaks.
She clarifies that if policy does restrict use or eliminate all calls, the policy should address how employees’ family members will reach them during working hours in case of a true emergency.
“If you choose to implement a policy, be sure you are willing to enforce it with all staff, not just the individual who may be abusing their phone,” Coker adds. ”And remember that any office policy you implement will only work if you follow the policy as well. If you use your phone between patients, the rest of your staff will start to think it is OK to use theirs.”
Fragrance, grooming and personal hygiene
Complaints about disagreeable odors are more common in settings where employees work in close quarters, including dental offices. Employees who apply fragrances more liberally, smoke or vape on breaks or don’t tend to personal hygiene may not be aware that the odors they bring in can disrupt other employees – and patients. In some cases, whether due to allergies or other reasons, employees may be unable to perform their jobs.
Coker suggests employers have a policy that outlines the practice’s expectations for professionalism and grooming.
“This can include or exclude the use of accessories, perfumes, gum, deodorants, soaps, etc.,” Coker says. “As a representative of your office, you can communicate your expectations in detail.”
However, she cautions employers to be mindful of grooming practices that are based on race, culture or religion, such as dreadlocks, which are protected by law in California.
She says “neat and clean” is typically fair. “This lets the employer address individual cases that arise as opposed to having a standard that is discriminatory.”
Regardless, employers should address these topics privately and with sensitivity. Body odor may be caused by a medical condition, poor hygiene or a specific diet, for example. If not addressed appropriately with the employee, it risks violating disability laws.
Attire and personal expression
Employers in California have a lot of discretion in setting workplace appearance standards or dress codes, but they cannot discriminate based on race, religion, gender identity or gender expression.
In the dental practice, banning flip-flops, open-toed shoes, shorts and tank tops is permissible based on a legitimate business necessity rather than a protected class.
Similarly, front-office employees could be expected to follow one dress code and clinicians another due to necessity. But imposing one dress code for women and another for men would likely be considered sex or gender discrimination. Employees must be allowed to dress consistent with their gender identity or gender expression.
Employee side gigs
An employee may use a side business to supplement their income or explore a second passion.
But problems can arise if, for example, a patient or co-worker complains that they felt pressured to purchase products, supplements, personal training or skin care from an employee.
More commonly, the employer discovers an employee is using practice time, patient information or property to conduct business. Now, besides potentially jeopardizing patient care and patient information confidentiality, employers must consider potential time theft.
For these reasons, Coker says a practice policy can prohibit employees from using their work time or office contacts to advance their private business or personal interests.
Use CDA’s Sample Employee Manual
Coker encourages practice owners to review policies annually. “Distribute any new or revised policies with employees, obtain their signed acknowledgment and keep all of this in the employee files.”
Member can use two CDA resources to develop and maintain a current, California-compliant employee manual for dental offices:
- Employee Manual Generator: Developed by CDA analysts and employment attorneys at HR for Health, this resource lets members create a customized employee manual based on their answers to questions about their practice.
- Sample Employee Manual: A comprehensive employee manual in MS Word format that members can customize to fit the needs of their practice.
Both resources are updated at least annually to reflect new and amended state laws.